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A    DIGESTED    INDEX 


TO 


HOWELL'S  EDITION  OF  THE  STATE  TRIALS, 


BY    DAVID   JARDINE,   Esq. 

OF   THE   MIDDLE   TEMPLE,   BARRISTER   AT   LAW. 


AN  Index  to  HovveU's  Edition  of  the  State  Trials  has  long  been  a 
desideratum :  amongst  all  classes  of  readers,  and  particularly  amongst 
members  of  the  legal  profession,  it  has  been  a  constant  subject  of  regret 
that  so  valuable  a  repository  of  historical  and  constitutional  information 
should  be  almost  inaccessible,  as  a  book  of  reference,  for  want  of  a  con- 
venient Index.  The  publishers,  having  determined  to  close  the  Work 
with  the  Thirty-Third  volume,  have  much  satisfaction  in  being  able  to 
annoimce  to  the  Public,  that  a  digested  Index  to  the  whole  collection 
is  now  nearly  ready  for  the  Press,  and  will  be  published  early  in  the 
Year  1827,  and  form  the  Thirty-Fourth  volume  of  the  entire  Work. 

In  making  this  Compilation,  the  object  has  been  to  furnish  the  general, 
as  well  as  the  professional  Reader,  with  an  easy  instrument  of  reference 
to  every  thing  contained  in  the  collection ;  and  it  has  been  considered 
that  the  simplest  method  of  arrangement  will  be  best  calculated  to  effect 
this  object  The  Index,  therefore,  merely  consists  of  two  Tables,  alpha- 
betically arranged ;  the  first  being  a  Table  of  Names,  with  a  short  abstract 
under  each  name  of  the  Contents  of  the  Work,  so  far  as  they  relate  to 
the  individual  to  whom  the  name  belongs,  and  a  reference  to  the  passages 
in  which  he  is  mentioned  :  the  second  being  a  Table  of  principal  matters, 
containing  references  to  all  the  leading  subjects,  and  all  the  incidental 
circumstances,  throughout  the  whole  collection.  The  heads  of  reference, 
in  both  Tables,  have  been  made  as  numerous  and  particular  as  possible, 
with  a  view  to  afford  a  large  number  of  such  points  as  may  most  probably 
occur  to  the  memory  of  the  Reader,  and  by  which  he  may  be  guided 
directly  to  the  object  of  his  search. 


COMPLETE    COLLECTION 

OF 

State    Trials 

« 

AND 

PROCEEDINGS    FOR    HIGH    TREASON    AND    OTHER 

CRIMES  AND  MISDEMEANORS 

FROM    THE 

EARLIEST  PERIOD  TO  THE  YEAR  1783, 
WITH  NOTES  AND  OTHER  ILLUSTRATIONS: 

COMPILED    BY 

T.  B.  HOWELL,  Esq.    F.R.S.  F.S.A. 

S^  AND 

CONTINUED 

FROM   THE   YEAR    1783    TO   THE    PRESENT    TIME: 

BY 

THOMAS  JONES  HOWELL,  Esq. 


VOL.   xxxm. 

[BEING    VOL.    XIL    OF   THE    CONTINUATION] 
57  GEORGE  IIL...A.  D.  1817 1  GEORGE  IV....A.  D.  1820. 


LONDON: 

LONGBfAN,  REES,  ORME,  BROWN  &  GREEN;  J.  M.  RICHARDSON;  KINGS- 
BURY,  PARBURY,  &  ALLEN;  BALDWIN,  CRADOCK,  &  JOY;  E.  JEFFERY 
&  SON ;  J.  HATCHARD  &  SON ;  R.  H.  EVANS ;  J.  BOOKER ;  J.  BOOTH ; 
A»D  BUDD  &  CALKIN. 

1896. 


•  •  * 


Lmm  OF  THE 
AUG  21  1900 


T.   C.  HiMirif, 
FriBlcr, 
PatenuMSer-row  Preih 


NOTICE. 

B  Y  the  present  volume^  this  Series  of  State  Trials  (termi- 
nating with  the  Reign  of  his  late  Majesty)  is  brought  to  a  close ; 
nor  is  there,  at  the  present  moment,  any  intention  to  continue  the 
publication  of  Modem  State  Trials  to  a  more  recent  period. 
Availing  themselves, ,  therefore,  of  the  opportunity  which  thus 
presents  itself,  the  Publishers  have  completed  their  arrangements 
for  the  early  appearance  of  a. Gei^ekal  Digested  Index, 
embracing  the  contents  as  well  of  the  First  as  of  the  Second 
Series. 

In  selecting  from  the  very  numerous  cases  which  fall  under 
the  denomination  of  State  Trials,  those  which  form  the  Second 
Series,  care  has  been  taken  to  reject  none  the  omission  of  which 
would  be  inconsistent  with  the  genial  object  of  the  work.  Of 
those  which  have  been  omitted,  some  did  not  appear  to  be  of 
su^ffident  importance  to  counterbalance  the  inconvenience  of  the 
great  eMension  of  the  work  which  their  insertion  would  have 
occasioned;  and  others,  in  so  far  as  relates  to  material  points, 
are  f idly  reported  elsewhere. 


TABLE  OF  CONTENTS 


TO 


VOLUME    XXXIII. 


GEORGE  THE  THIRD,  A.  D.  1817. 

Page 
()98.     Proceedings  in  the  High  court  of  justiciary  at  Edinburgh 

against  ALEXANDER  M'LAREN  and  THOMAS  BAIRD, 

for  Sedition^  a.  d.  1817   • • •••• 1 

699.  Proceedings  in  the  High  Court  of  Justiciary  at  Edinburgh^  on  two 

successive  Indictments^  raised  by  his  Majesty's  Advocate^  against 
WILLIAM  EDGAR^  for  administering  unlawful  Oaths^  a.  d. 
1817  145 

700.  Proceedings  in  the  High  Court  of  Justiciary  at  Edinburgh^  on  two 

successive  Indictments,  raised  by  his  Majesty's  Advocate,  against 
ANDREW  M'KINLEY,  for  administering  unlawful  Oaths,  a.  d. 
1817   275 

Proceedings  against  JAMES  M'EWAN  and  others  at  Glasgow  ...     629 

701.  Proceedings  in  the  High  Court  of  Justiciary  at  Edinburgh,  against 

NEIL  DOUGLAS,  Universalist  Preacher,  for  Sedition,  a.  d. 
1817 633 


GEORGE  THE  FOURTH,  A.  D.  1820. 

702.    The  whole  Proceedings  on  the  Trial  of  ARTHUR  THISTLE- 
WOOD,  for  High  Treason,  a.  d.  1820   681 


TABLE  OF  CONTENTS. 

703.  The  whole  Proceedings  on  the  Trial  of  JAMES  INGS,  for  High 

Treason,  a.  d.  1820 ••• «• «....     957 

704.  The  whole  Proceedings  on  the  Trial  of  JOHN  THOMAS  BRUNT, 

for  High  Treason,  a.  d.  1820 1177 

705.  The  whole  Proceedings  on  the  Trial  of  WILLIAM  DAVIDSON 

and  RICHARD  TIDD,  for  High  Treason,  a.d.  1820 1337 

ADDENDA   to  ihe  Case  of  VALENTINE  JONES,  Esq.,   yd.  x.  of 

this  Continuation,  p.  336 • •• 1567 


STATE 


I       T 


STATE    TRIALS, 


698.  Proceedings  in  the  High  Court  of  Justiciary  at  Edinburgh 
against  Alexander  M'Larek  and  Thomas  Baird,  for 
Sedition^  March  5th — 7th:  67  George  III.  a.  d.  1817. 


flIGti  COURT  OF  JUSTICIARY. 

March  5,  1817. 

Present, 

Hl  Hon.  Bamd  BmfU^  Lord  Justice  Clf^rk. 

Lord  Bermani* 

IjardGUiies. 

lAudPHmiify. 

Lord  Baton. 

Countelfor  the  Croum* 

.  Rl  Hon.  Alejotider  MataiuKMe^  Lord  Adfo- 
-    cate  [afterwards  a  l<»d  of  Session  and  Justi- 
ciary,  with  the  title  of  Lord  Meadowhank.J 
Janes  Wedderktmj  Esq.  Solicitor^eneral. 
H.  H.  Dmifwiondy  Esq. 
J.  A,  Maeonoekiey  Esq. 

H,  Wmraukry  Esq.  Agent. 

Coiamlfor  Alexander  M*Lat€n. 
Jckn  Clerk,  Esq. 
J.  P.  Grant,  Esq. 
James  CamjieUy  Esq . 

Mr.  JR.  Morion^  Agent. 

Counsel  for  Thomas  Baird, 

Thmas  Jeffery,  Esq". 
Benry  Cockbum,  Esq. 
X  5.  Stewart^  Esq. 

Mr.  J.  Campbell,  W,  S.  Agent. 

Xorrf  Jftf^ior  C2»r&.  —  Alexander  M'laren 
and  Thomas  Baird«  attend  to  the  indictment 
against  you,  which  the  clerk  of  Court  will  read. 

"  Alexander  m«laren,  now  or  lately 

weafer  in  Kilmamack,  in  the  county  of  Ayr, 
and  Thomas  Baird,  merchant  there,  you  are 
indicted  and  accused,  at  the  instance  of  Alex- 
ander Maoonodiie  of  \Meadowhank,  his  ma- 
jesty's'  advocate,  for  his  majesty's  interest: 
thai  albeit,  by  the  laws  of  this  and  of  every 
other  well-governed  realm,  Sedition  b  a  crime 
of  a  heinous  nature,  and  seveitly  punishable : 

VOL.  xxxm. 


yet  true  it  is  and  of  verity,  that  you  the  said 
Alexander  M'Laren  and  Thomas  Baird  are 
both  and  each,  or  one  or  other  of  you,  guilty 
thereof,  actors  or  actor,  or  art  and  part :  in  $o 
far  as,  you  the  said  Alexander  M*Laren  did, 
at  a  public  meeting,  held  at  Dean-park,  in  the 
vicinitv  of  Kilmarnock  aforesaid,  on  the  7th 
dajT  of  December  1816,  or  on  one  or  other  of 
the  days  of  that  month,  or  of  November  im- 
mediately preceding,  or  of  January  immedi- 
ately following,  which  meeting  was  attended 
by  a  great  multitude  of  persons,  chiefly  of  the 
lower  orders,  wickedly  and  feloniously  deliver 
a  speech,  containing  a  number  of  seditious  and 
in&mmatory  remarks  and  assertions,  calculated 
to  degrade  and  bring  into  contempt  the  go- 
vernment and  legislature,   and  to  withdraw 
therefrom  the  confidence  and  affections  of  the 
people,  and  fill  the  realm  with  trouble  and  dis- 
sention ;  in  which  speech  there  were  the  fol- 
lowing or  similar  wicked  and  seditious  expres- 
sions : — "  Tliat  our  sufferings  are  insupportable, 
is  demonstrated  to  the  world ;  and  that  they 
are  neither  temporary,   nor  occasioned  by  a 
transition  *  from  war  to  peace,'  is  palpable  to 
all,  though  all  have  not  the  courage  to  avow 
it.    The  fact  is,  we  are  nUed  by  men  only  so* 
ficitous  for  their  own  a^randizement ;   and 
they  care  no  farther  for  the  great  body  of  the 
people,  than  they  are  subservient  to  their  ac- 
cursed purposes.    If  you  are  convinced  of  this, 
my  countiymen,   I  would  therefore  put  the 
question,  are  you  degenerate  enough  to  bear 
it  ?    ShaJl  we,  whose  forefathers  set  limits  to 
the  all-grasping  power  of  Rome;   shall  we, 
whose  forefathers,  at  the  never  to  be  forgotten 
field  of  Bannockbum,  told  the  mighty  Edward, 
at  the  head  of  the  most  mighty  array  ever 
trod^  on  Britain's  soil,   '  Hitherto  shait  thoa 
come,  and  no  farther;'  shall  we,  I  say,  whose 
forefathers  defied  the  efforts  of  foreign  tyranny 
to  enslave  our  beloved  country,  meanly  permit, 
B 


31 


57  GEORGE  III. 


Trial  of  Alexander  McLaren 


C4 


{ii  Our  day,  wifkettt  a  murmiir,  a  base  oligaithy 
to  feed  their  filthy  yermin  on  our  vitals,  aud 
rule  us  as  they  will  ?    No,   my  countrymen. 
Let  us  lay  our  petitions  at  the  foot  of  the 
throne,   where  sits  our  August  Prince,  whose 
gtacious  nature  will  incline  his  ear  to  listen  to 
tiie  cries  of  his  people,  which  1^  is  bound  to 
do  by  the  laws  of  the  country.    But,  should 
he  be  so  infatuated  as  to  turn  a  deaf  ear  to- 
their  just  petition,  he  has  forfeited  their  allegi- 
ance.   Yes,  my^  fellow  townsmen,   in  such  a 
case,  to  helL  with  our  allegiance."    And  you 
the  said  Alexander  MLaren  did,  shortly  there- 
after, deliver,   or  cause  to  be  delivered,  your 
said  speech,  in  manuscript,  to  Hugh  Crawford, 
printer  in  Kilmarnock,  to  be  by  him  printed  and 
published.    And  you  the  said  Thomas  Baird 
having  been  present  at  the  said  meeting,  and 
having  heard  the  said  speech,  and  others  of  a 
similar  tendency,  delivered  there,  did,  shortly 
thereafter,   and  in  the  course   of  the  said 
months  of  December   or  January,,  wickedly 
and  feloniously  print,  or  cause  or  procure  to 
be  printed,   at  the  printing-office  of  the  said 
Hugh  Crawford,   id  Kilmarnock  aforesaid,  a 
seditious  tract  or  statement,  intituled,  "  Ac- 
count of  the  proceedings  of  the  public  meeting 
of  the  Burgesses  and  Inhabitants  of  the  town 
ofKifinainock,  held  on  the  7lh  of  December 
1816,  for  the  purpose  of  deliberating  on  the 
most  proper  method  of  remedying  the  present 
distresses  of  the  country,  with  a  ftiU  report  of 
the  speeches  on  that  occasion  ;*'  which  printed 
tract  or  statement  did  contain  a  number  of  se- 
ditious and  inflaipmatory  remarks  and  asser- 
tions, calculated  for  the  purposes  above  men- 
tioned ;   and,   in  particular,   a  report  of  the 
said  speech  of  you  tne  said  Alexander  M'Laren, 
with  the  passage  aforesaid,   in  the  same,  or 
nearly  the  same  terms ;  as  also  the  following 
wicked  and  seditious  passages,  viz.  page  ninth, 
. — "  And  a  House  of  Commons — but  the  latter 
is  corrupted ;  it  is  decayed  and  worn  out ;  it 
is  not  really  what  it  is  called,  it  is  not  a  House 
of  Commons/' — Page  tenth — "  The  House  of 
Commons,  in  its  original  composition,  con- 
sisted only  of  commoners,   chosen  annually 
by  the  universal  suffrage  of  the  people.    No 
nobleman,  no  clergyman,  no  naval  or  military 
officer,  in  short,  none  who  held  places,  or  re- 
ceived pensions  from  government,  had  any 
right  to  sit  in  tliat  House. — ^This  is  what  the 
House  of  Commons  was,  what  it  ought  to  be, 
.and  what  we  wish  it  to  be ;  this  is  the  wanted 
change  in  our  form  of  government — the  Com- 
mons House  of  Parliament  restored  to  its  ori- 
ginal purity ;  and  this,  beyond  a  doubt,  would 
strike  at  the  root  of  the  greatest  part  of  the 
evils  we  groan  under  at  the  present  day."-*- 
Page  eleventh,  "  la  it  any  wonder,  my  friends, 
that  this  country  is  brought  to  its  jpresent  unpre. 
bedented  state  of  misery,  when  the  rights  of  the 
people  have  been  thus  wantonly  violated  1'*-^ 
^age  twelfth,  "  But  let  us  come  nearer  home*. 
J^ok  at  the  year  1793,  when  the  debt  amounted 
to  two  hundred  and  eleven  millions,  and  the 
annual  taxation  to  about  eighteen  millions ; 


when  liberty  began  to  rear  her  drooping  head 
in  the  country^  when  associations  were  framed 
from  one  end  of  the  kingdom  to  another,  com- 
posed of  men  eminent  for  their  talents  and 
virtue,  to  assert  their  rights ;   when  a  neigh- 
bouring nation  had  just'  thrown  off  a  yoke 
which  was  become  intolerable — ^what  did  the 
wise  mien  of  this  coavtry  do?    Why,  they 
declaved  war,  not  only  against  the   French 
nation,  but  also  against  the  friends  of  liberty 
at  home.*' — Page  twenty-ninth,  "  Our  oppres- 
sors have  taxed  the  very  light  of  heaven ;  and 
they  seem  surprised  and  indignant  that  we 
should  not  bear  the  insupportable  burden,  with 
which  folly,    corruption,   and  avarice,    have 
loaded  us,  without  reluetance  and  eomplatnl?-* 
— Page  thirty-second,  **  Their  reverend  hire- 
lings would  convince  you  that  you  are  suffering 
under  the  visitation  of   the  Almighty,   and 
therefore  ought  to  be  submissive  under  the 
chastenii^  atroke.''"-'Page  thirty-fifth,   ^  We 
have  these  twenty-five  years  been  condemned 
to  inceMant  and  unparalleled  slavery,  by  a 
usurped  Oligarchy,   who  pretend  to  be  our 
guardians  and  repvesentatives,  while,  in  fsLCi, 
they  are  nothing  but  our  inflexible  and  deter- 
mined enemies.**—^'  They  have  robbed  ns  oF 
our  money,  deprived  us  of  our  friends,  violated 
our  rights,  ana  abused  our  privileges.** — **  At 
present  we  have  no  representatives ;  they  are 
only  nominal,  not  real ;  active  only  in  prose- 
cutmg  their  own  designs,  and  at  the  same  time 
telling  us  that  they  are  agreeable  to  our  wishes.^ 
— ^And  you  the  said  Thomas  Baird  having  ob- 
tained a  number  of  copies  of  the  said  printed 
tract  or  statement,  cootaiDing  the  said  falser 
wicked,  and  sedKioufi  nasaages,  and  othcia  of 
a  similar  tMidency,  ana  being  altogether  of  a 
seditious  nature,  did,  in  the  coerso  oi  the 
said  months  of  December  and  January,  and 
of  February  immediately  following,  at  your 
shop  in  KUmamoek  aimsaid,  wickedly  and 
feloniously  sell,  publish,  and  circulate,  or  cause 
to  be  sold,  published,  or  circulated,  many  of 
the  said  copies  thereof,  at  the  price  of 'fourpence 
each,  or  other  small  sum,  one  of  which  was 
then  and  there  purchased  by  Hugh  Wilson, 
weaver  in  Kilmarnock.     And  you  the   said 
Alexander  McLaren  and  ThoDM»  Baird  having 
been  apprehended  and  taken  before  WilUaai 
Eaton,  esq.,  sheriff-substitute  of  the  county  of 
Ayr,  did,  in  his  presence,  at  Kilinamock,  on 
the  26th- day  of  Febraary  1817,  both  and  each 
of  you  emit  and  subscribe  a  declaration  :  which 
declarations,    being  to  be  used  in  evidence 
against    each  of  you  respectively,    and    the 
manuscript  of  nineteen  pages,  and  the  half 
sh^et  of  paper,  tilled  on  the  back,  **  No*  5,*^ 
both   referred  to  in  the  said   declaration   of 
you  the   said  Thomas   Baird,   being    to    be 
used  in  evidence  against  you  the  said  Hiomes 
Baird,  as  also  three    copies  of  the  printed 
tract,  or-  statement,  above  mentioned,  beie^ 
to  be  used-  in    evidence   agaipst  both    and. 
each  of  vou,  will  be  lodged  in  due  time  in, 
the  hands  of  the  clerk  of  the  high  court  of 
justiciary,  before  which  you  are  to  be  trieif^ 


si 


and  Th&mas  Bairdjbr  S^khn, 


A.  D.  1817. 


16 


ttat  ywx  nay  have  sn  opportunify  of  Mefn^ 
the  tane.  At  letst,  times  and  places  foresaid 
respectively,  the  said  seditious  speedi  was 
wickedly  aod  feloniously  delivered,  ooBttibibg 
the  said  or  aroilar  wicked  and  seditious  ex- 
pressions :  and  the  said  seditious  tract  or  state- 
meat,  coDtaioing  the  said  seditious  and  in* 
dammaioiy  paasages,  and  others  of  a  similar 
tendency,  was  wicJkedly  and  felonioosly  printed^ 
sold,  pablished,  and  circulated,  or  caused  or 
procured  so  to  be,  as  above  mentioned :  and 
you  the  said  Alexander  M'Laren  and  Thomas 
Baipd  are  both  and  each.  Of  one  or  other  of 
you,  guilty  thereof,  actors  or  actor,  or  art  and 
pait.  All  which,  or  part  thereof,  beins  found 
proven  by  the  verdict  of  an  assize,  beu>re  the 
lord  justice  general,  the  lord  justice  derk,  and 
lords  commissioners  of  justiciary,  you  the  said 
Alexander  M'Laren  and  Thomas  Baird  ought 
to  be  punished  with  the  pains  of  law,  to  deter 
others  from  committing  the  like  crimes  in  all 
time  coming. 

"  H.  Home  Dbumkovd,  A.  D.*' 


LIST  OF  WITKK8SES. 


1. 


2. 


William  Eaton,  esquire,  sheriff-eubstitQte 

of  Ayrshire. 

Thomas  Weir,  sheriff-clerk-^epate  of  Ayr^ 

shine. 

3.  Alexander  Murdochj  writer  in  Ayr. 

4.  Amirew  Fmnie,  merchant  in  Kilmarnock. 

5.  WUiiam  Merrkj  wrigbt  there. 

6.  Hugh  Crmrfordf  printer  there. 

7.  Thomas  Murray,  journeyman  to  the  said 
Hugh  Crawford. 

6.  Jamer  JohatsUme,  muslin-agent  there. 
9.  David  Ramsay  Andrews,  writer  there. 

10.  Hugh  Wibon,  weaver  there. 

11.  Jamn  Samson,  weaver  there. 

12.  David  Bow,  shopman  to  Thomas  Baird, 
merchant  in  Kilmarnock. 

U.  HoMx  Dbummovd,  a.  D. 

LIST   OF   ASSIZE.  * 

CoaMty  of  Edinburgh. 

Jtanes  Watson,  of  Saughton. 
Charles  Eraser,  of  Williamston. 
Alexander  Falconer,  baker  in  Dalkeith. 
William  Crichion,  glazier  there.  « 
WUUam  Watson,  farmer,  Middle-Ksnleith. 
John  Dodds,  fanner,  Saughton-mill. 
John  Drysdale,  farmer,  Clermiston. 

Couttiy  of  Haddington. 

George  Remtie,  of  Fantassie. 

Daoid JPringle,  of  Blegbie. 

David  Skhrving,  farmer  at  £ast-Garleton. 

Peter  Sheriff',  fanner  at  Drem. 

John  Hukp,  junior,  grocer  in  Haddington* 

County  of  LinUthgow, 

¥atm&n  Shmrpy  younger  of  Houston. 

Jafei  Stewart,  of  Birniy. 

James  Gardner,  junior,  merchant  in  Bathgate. 

JbAit  Colder,  farmer  at  Drumcross. 

John  Buttell,  farmer  at  Mosside. 


CUy  vf  TAMnargh, 

WUliam  MoriWi^  jeweller,  South-brjd'ge-dtrcet^ 
Edinburgh. 

Walter  Lamb,  upholsterer  in  Edinburgh. 

Archibald    M'Kinlay,    haberdaiihcr    in   Edin- 
burgh. 

John  Baxter,  confectioner  there. 

ShatTp  Callender,  clothier  there. 

William  PiUtison,  junior,  haberdasher  in  Edia* 
burgh. 

Andrew  Mellis,  haberdasher  there. 

John  Pollock,  insurance  broker  there. 

James  Hbtc(/ini,  jeweller  tliere. 

John  Drtanmona,  manufacturer  there. 

Alexander  Andehon,  general-agent  there. 

James  Spence,  perfumer  there. 

Peter  Brown,  hnen-draper  there. 

William  Kennedy,  glover  there. 

James  Gilchrist,  clothier  there. 

Charles  Howden,  shoemaker  there. 
,  Edward  XxUchrist,  haberdasher  there. 

James  Virtue,  Button-manufacturer  there. 

James  Richmond,  insurance-broker  there. 

James  Stoddart,  wine-merchant  there. 

Andrew  Wauchope,  turner  there. 

Town  ofLeith, 

James  Duncan,  ship-owner  in  Leith. 
James  Harper,  corn-merchant  there. 
Wm.  Uumay,  wine-merchant  there, 
/osaet  JSkitmer,  cooper  there. 
John  Oowan,  wood*4nerchant  there. 
Charles  Murray,  wright  there. 
John  SomeruUle,  tanner  tliere. 

Ad.  Gillies. 

D.  MoKTFBNUY. 

David  DduoLAS^ 

I/frd  Justice  Clerk. — Alexander  M*Lareti 
and  Thomas  Baird ;  What  do  you  say  to  the 
libel  ?  are  you  guilty  or  not  guilty  ? 

Ptfne/i.— Not  guilty. 

The  following  Defences  had  been  given  in. 

Depbvcbs  for  Alexander  M'Laren,  Weaver  in 
Kilmarnock,  to  the  Indictment  at  the  in- 
stance of  Alexander  Maconochie  of  Mea- 
dowbank,  his  Majesty's  Advocate,  for  his 
Majesty^s  interest,  for  Sedition. 

^'The  panel  has  been  employed  horn  his 
early  youth  in  his  trade  as  a  weaver.  He  has 
always  preserved  the  most  sober  and  orderly 
habits,  and^  if  necessary  he  could  bring  forward 
complete  proof  of  his  uniform  and  steadjT 
loyalty.  He  never  was  engaged  in  any  riot  or 
disturbance  whatever,  and  never  was  connect- 
ed, or  accused  of  being  connected  with  any  of 
the  societies,  or  combinations  of  men  formed 
for  unlawful  purposes,  or  whose  objects  have 
been  regarded  with  suspicion.  He  was  a  vo- 
lunteer in  the  Glasgow  Highland  regiment 
during  the  whole  period  of  its  establishment, 
and  when  the  volunteer  system  was  put  an  end 
to,  he  transferred^  his  services  to  the  local 
militia.  During  the  greatest  part  of  his  service, 
he  was  a  serjeant,  a  situation  which  he  ob- 
tained by  Ids  good  conduct. 


71 


57  GEORGE  III. 


Trial  ofAktander  M'Lareu 


C8 


U 


Of  lale  yeaiiytlu^mieliamoBgiiiaDyoUiierty . 
lamented  the  distresses  of  the  ceuotiVy  from 
which  he  himself  had  severely  suiTerea  in  his' 
situadbn  and  prospects.  He  tiierefore  approv- 
ed of  the  petitions,  which  were  presented  in 
such  numhers  to  his  royal  highness  the  Prince 
Begenty  and  the  two  Houses  of  parliament,  the 
object  of  which  was  to  obtain  relief. 

**  A  meeting  was  held  near  Kilmarnock  in 
the  month  of  December  last,  at  which  a  great 
multitude  of  people  attended,  for  the  pnrpose 
of  considerinff  of  the  expediency  of  petitioning 
his  royal  highness  the  Prince  Ilegent  and  the 
Houses  of  Parliament,  upon  the  present  dis- 
tressed state  of  the  country,  and  the  subject 
of  parliamentary  reform.  The  panel  was  pre- 
sent at  that  meeting,  and  made  a  short 
speech,  not  in  the  terms  alleged  in  the  libel, 
but  in  other  tetms,  which  appeared  to  him 
to  be  warranted  by  law  in  such  a  case. 
The  meeting  was  afterwards  addressed  by  other 
persons;  certain  resolutions  were  agreed  to; 
petitions  were  drawn  out,  addressed  to  the 
Frince  Regent,  and  to  the  two  Houses  of  par- 
liament. These  petitions  having  been  signed 
by  a  great  number  of  persons,  were  sent  to 
Ix)ndon  and  presented.  The  petitions  ad- 
dressed to  the  two  Houses  of  Parliament  were 
presented,  read,  and  ordered  to  lie  on  the  table 
of  each  house.  In  his  speech,  the  panel  did 
nothing  more  than  lawfully  recommend  the 
said  petitions^:  and  he  denies  that  he  is  guilty 
of  the  crime  of  sedition. 

^'The  panel  took  no  charge  whatever  of 
printing  the  pamphlet  produced  with  the  libel ; 
and  he  finds  that  his  own  speech  is  inaccurately 
reported. 

**  It  is  an  evident  misconception,  that  such 
a  speech,  spoken  at  a  lawful  meeting  for  lawful 
purposes,  was  calculated  to  degrade  and  bring' 
into  contempt  the'  government  and  legisla- 
ture, and  to  withdraw  therefrom  the  confidence 
and  affections  of  the  people,  and  fill  the  realm 
with  trouble  and  dissentions.  If  there  are 
grievances  or  abuses,  or  such  men  as  bad  rulers, 
or  bad  ministers,  those  who  complain  against 
them,  or  petition  against  them,  do  only  exer- 
cise their  legal  rights.  The  panel,  while  he 
was  disposed  to  petition  for  redress  of  griev- 
ances, was  filled  with  the  same  reverence  for 
the  legislature  and  all  its  different  branches, 
and  for  the  government  of  the  country  as 
established  by  law,  that  is  impressed  on  the 
mind  of  every  good  subject. 

'*  Under  protestation  to  add  and  eik. 

"  John  Clekk. 
**  J.  P.  Grakt. 
"  James  Campbell." 

LIST  of  exculpatory  WITNESSES. 

Hugh  WiUon,  weaver,  Kilmarnock. 
Jumet  Samson,  ditto,      ditto.  ' 

James  Johnstofie,  muslin -agent  there. 
John  Kennedif,  schoolmaster  there. 
John  £/!ac^iMW(^  Vool-spinner  there. 


Dbfs«cs8  for  Thomas  Baiid,  to'the  IndicUnent 
at  the  instance  of  his  Majesty's  Advocate 
for  the  Crime  of  Sedition. 

**  The  panel  denies  that  he  is  guilty  of  the 
crime  diarged  against  him.  He  was  not  a 
speaker  at  the  meeting  mentioned  in  the 
indictment,  and  neither  spoke  mor  v^rote  any 
of  the  words  there  set  forth.  He  also  denies 
that  he  printed  or  published  any  of  the  said 
words;  and  if  any  circumstances  shall  be 
proved  tending  to  connect  him  with  the  publi* 
cation  or  sale  thereof,  he  has  no  doubt,  both 
from  the  tenor  of  the  said  words  and  the  nature 
of  his  concern  with  them,  that  it  will  be 
apparent  that  he  is  entirely  guiltless  of  the 
crime  here  charged. 

*'  Under  protestation  to  add  and  eik. 

•*  F.  Jeffrey. 

**  H.  COCKBURH, 

**  J.  S.  Stewart.** 

list  of  exculpatory  witnesses. 

John  Andrews,  chief  magistrate  of  Kilmarnock. 
DaM  Hamsay  Andrews,  writer  there. 
WaJUer  Andrews,  writer  there. 
Andrew  Finnie,  merchant  there. 
James  Johnstone,  muslin  agent  there. 
John  Brown,  writer  there. 
Baiiie  William  Brown,  manufacturer  there. 
John  WilUe,  assessor  of  taxes  there. 
Bjoberi  Howie,  merchant  there. 
Tfiomas  Murray,  printer  there. 
The  Rev.  James  Kirkwood,  relief  minister  there,, 
residing  at  Riccarton. 

Lord  Justice  Clerk. — ^Have  the  counsel  Cor 
the  panels  any  objections  to  state  to  the 
relevancy  of  this  indictment  ? 

Mr.   Campbell, — I  appear  on  behalf  of  the 
panel,  Alexander  M'liiren.      It  is  not   my 
intention  to  state  any  objections  to  ttie  relevancy 
of  the  libel,  but  to  explain  to  the  Court  and 
Jury  the  nature  of  the  concern  which  he  had 
in  the  transactions  now  brought  before  this 
Court.    At  the  same  time,  it  is  proper  I  should 
state,  that  we  who  are  his  counsel  hold  it  to  be 
the  undonbted  law — and  law  which  has  never 
been  questioned  in  this  part  of  the  country — 
that  it  is  the  province  of  the  jury  to  consider 
both  the  facts  and  the  law  of  the  case — that  it 
is  for  them  to  say  whether  the  facts  charged  in 
the  indictment  are  proved  in  the  course  of  the 
trial,  and  if  they  find  them  proved,  whether 
these  facts  do  amount  to  the  crime  charged. 
And  that  being  the  case,  we  hold  that  we  are 
not  deprived  of  the  benefit  of  any  pleas  which 
we  may  afterwards  maintain,  by  any  interlo- 
cutor of  relevancy  now  to  be  pronounced. 

I  conceive  also,  that  in  justice  to  the  panel 
and  in  justice  to  the  opposite  side  of  the  bar, 
(who  always  meet  me  with  liberality,  and  whom 
I  wish  to  meet  in  the  same  manner),  I  should 
at  once  and  openly  state  the  nature  of  the 
defence  we  intend  to  maintain,  and  should  say 
something  of  the  history  and  character  of  the 
I  panel. 


^ 


and  Timtu  Bakd/or  SeUition. 


9} 

Tlie  paaely  after  learmng  the  tnde  of  m 
*«reayer,  to  the  coooty  of  Perth,  went  to 
Glasgow,  where  be  continued  a  good  many 
yean.  He  acted  as  assistant  foreman  in  a 
■lecrantile  bouse,  and  during  the  whole  of  his 
-engagement  gave  entire  satisfaction  to  his 
employer.  Seventeen  years  ago  he  entered 
into  the  Highland  corps  of  yolunteers  in  tluit 
city,  and  soon  rose  to  the  rank  of  serjeant,  and 
continued  with  the  corps  till  it  was  disbanded, 
and  the  volunteer  associations  were  discon- 
tinued. He  next  went  to  Kilmarnock,  where 
a  great  many  weavers  are  occupied  in  working 
lor  the  manufacturers  of  Glasgow ;  and«  at  the 
same  time,  he  again  gave  his  services  to  the 
public,  by  entering  into  the  local  militia  corps 
of  that  district,  in  which  corps  |ie  continued 
down  to  1812,  when  the  period  of  its  service 
expired.  And  not  only  was  there  no  complaint 
against  him  during  all  these  periods,  as  a  man 
either  troublesome  or  quarrelsome,  but  he 
maintained  in  Kilmarnock,  during  the  period 
of  nearly  eight  years  during  which  he  lived 
there,  a  character  remarkable  for  sober  habits, 
attachment  to  good  order,  and  to  the  govern- 
ment of  the  country ;  and  last  harvest,  during 
a  riot  which  occurred  about  a  scarcity  of  meal, 
so  far  was  he  from  taking  any  part  in  the  riot, 
that  when  a  house  was  to  be  attacked,  he  put 
himself  forward  along  with  two  constables  in 
order  to  protect  the  house.  He  enjoyed  the 
same  decent,  respectable,  and  good  character, 
till  this  charge  of  sedition  was  brought  against 
him. 

He  does  not  deny  that  he  attended  the 
meeting  in  December.  His  means  of  subsist- 
ence, and  those  -of  his  neighbours  about  him, 
had  been  graduslUy  declining.  They  had  ar- 
rived, before  the  period  I  speak  o%  at,  1  hope, 
their  worst  state  of  distress ;  for  he  worked 
fifteen  hours  a  day  for  5s.  a-week,  although  he  is 
not  only  one  of  the  best  workmen,  but  so  expert 
as  to  be  able  to  execute  the  best  work  in  the 
shortest  time.  And  I  will  prove,  that  other 
workmen  who  could  execute  as'  good  work, 
bot  who  were  not  so  expert  and  expeditious  as 
my  client,  were  able  to  obtain  only  3s.  a-week. 
The  panel  admits  that  in  this  distress  he  began 
to  think  of  the  causes  which  had  reduced  his 
neighbours  and  himself  froin  a  condition  in 
which  they  were  prosperous  and  happy  to  a 
state  in  which  they  could  scarcely  gain  the 
means  of  subsistence ;  he  confesses  he  came 
to  be  of  opinion,  tfiat  the  evils  were  partly 
owing  to  toe  excessive  taxation  which  had 
been  imposed  on  the  country;  and  he  and 
some  othera  thought  it  right  to  call  a  meeting 
of  the  inhabitants  of  the  place  where  he  resided, 
to  consider  the  propriety  of  a  petition  to  the 
legislature  on  the  subject  of  their  distresii^  its 
causes,  and  what  appeared  to  them  to  be  the 
proper  remedies; 

Thev  conceived,  that  to  do  this  was  their 
nndouDted  right ;  and  it  will  not  be  denied  on 
the  opposite  side  of  the  bar,  that  such  was 
their  right.  There  is  no  charge  in  the  indict- 
ni^t  that  the  meeting  was  illegal.   .It  was  a 


A.  D.  1817. 


uo 


I 


legal  neeting  which  they  were  entitled  to 
hold :  it  was  for  a  legal  purpose ;  there  was  no 
harm  in  going  there;  and  every  person  waa 
entitled  to  state  the  grievances  he  felt,  and  in 
a  manner  that  might  induce  the  meeting  to 
take  constitutional  measures  for  what  he  con- 
ceived would  bring  them  relief.  Tl^  panel 
did  not  intend  to  take  any  part  in  the  proceed- 
ings, nor  to  open  the  meeting  as  he  did.  fiut 
those  persons  who  were  to  have  opened  the 
proceedings,  were  not  equal  to  the  task  wbea 
the  time  came,  and  he  was  asked  to  undertake 
what  was  refused  by  the  others.  He  went  into 
a  house  in  the  neighbourhood,  and  hastily 
threw  upon  paper  some  observations  which  he 
wished  to  submit  to  the  meeting.  He  did  ad- 
dress the  meeting,  but  he  did  not  submit  to  it, 
— and  there  were  not  contained  in  that  paper— 
what  are  cited  as  offensive  expressions  in  the 
last  part  of  the  indictment. 

As  to  tl^e  passage  about  a  corrupt  adminis- 
tration, which  is  cited  in  the  indictment,  it  was 
in  the  manuscript,  but  was  not  spoken  in  the 
field.  I  admit  that  the  manuscript  afterwards 
went  into  the  hands  of  the  committee  of  the 
petitioners,  at  the  request  of  the  committee,  in 
order  to  be  printed  in  an  account  of  the  pro* 
ceediogs,  but  he  had  no  concern  in  printing 
that  account. 

With  regard  to  the  expressions  which  are 
charged  as  seditiously  directed  against  the 
legislature,  we  shall  satisfy  the  jury,  and  shall 
show  your  lordships,  ^hat  giving  them  a  fair 
construction,  they  contain  nothing  improper 
against  any  of  the  orders  of  the  state,  against 
the  King,  the  House  of  Lords,  or  H'ouse  of 
Commons.  In  sound  construction,  the  ex- 
pressions apply  only  to  the  administration  for 
the  time,  and  every  person  at  such  a^  meeting 
is  entitled,  if  he  thinks  it  right,  to  attack  the 
policy,  and  conduct  of  ministers.  I  need  not 
enter  into  the  question,  whether  there  has 
been  roal-administration  or  not;  but  every 
person  feeling  himself  aggrieved  is  entitled  to 
state  his  grievances,  and  more  particulariy  at 
a  meeting  convened  for  the  purpose  of  apply- 
ing to  the  legislature  for  redress.  This  will 
not  be  denied.  And  what  was  done  in  conse- 
quence of  this  meeting,  and  of  the  speeches 
which  were  made  there?  Every  thing  was 
conducted  in  a  regular  and  orderly  manner;, 
no  injury  was  done  to  any  property  or  to  any 
person ;  the  only  consequence  of  the  meeting 
was,  that  three  petitions  were  resolved  on,  one 
to  the  Prince  Regent,  another  to  the  House  of 
Lords,  and  the  third  to  the  House  of  Commons ; 
which  last  petition,  when  presented  to  that 
House,  was  ordered  to  be  brought  up  and  to 
lie  on  the  table.  This  i*  proof  that  the  peti- 
tions contained  nothing  that  was  offensive  to 
the  Prince  Regent,  nothing  seditious,  nothing 
offensive  to  the  Houses  of  rarliament.  Every 
thing  that  resulted  was  legitimate  and  proper. 

Taking  the  whole  circumstances  into  consi- 
deration, it  clearly  appears,  that  th#  first  pas- 
sage objected  to,  relates  to  the  measures  of 
ministers ;  and  I  will  prove  even  by  witnesses 


11> 


57  GEORGfi  III. 


Trial  rfdUmnitr  M*Liiren 


112 


for  tlie  cTOwn>  th^t,  bo  fa»  was  my  dtent  from 
employing  any  exprieasions  disrespectliil  to- 
wards the  head  of  the  govemme&t,  that  he  did 
quite  the  reverse,  and  ftpoke  with  the  titmost 
respect  of  the  Prince  Regent. 

This  being  the  situation  of  the  maCtefy  and 
my  client  having  done  nothing  but  what  he 
was  entitled  to  do,  we  ^all  show  that  the  lan- 
guage he  used  was  no  other  than  what  he  was 
completely  authorised*  to  use.  In  numerous 
petitions  to  parliament,  much  stronger  lao** 
guage  has  been  used,  and  found  not  only  to 
be  not  seditious,  but  to  be  not  disrespectful  to 
the  House.  What  was  the  language  held  when 
Parliamentary  Reform  was  llrst  talked  of  at 
the  Thatched-house-tavem  ?  in  the  second 
resolution  of  that  meeting  it  was  said,  **  This 
meetipg,  considering  that  a  general  application 
by  the  collective  b(^y  to  the  Commons  Ilouse 
of  Parliament  cannot  be  made  before  the  close 
of  the  present  session,  is  of  opinion,  that  the 
sense  of  the  people  should  be  taken  at  such 
times  as  may  be  con? enient  this  summer,  in 
order  to  lay  their  ^veral  petitions  before  par- 
liament early  in  the  next  session,  when  their 
pmposition  for  a  Parliamentaty  Reformation, 
wUhout  ufkick  neither  the  liberty  of  the  natkm  <wn 
be  preserved,  n&r  the  permanence  of  a  wise  and 
virtuous  administration  can  be  secured,  may  re- 
ceive that  ample  and  mature  discussion  which 
so  momentous  a  question  demands/'  *  These 
are  strong  terms,  and  imply,  that,  without  le^ 
formation  in  the  representation  of  the  people, 
the  liberty  of  the  subject  is  in  danger ;  and  if 
there  is  any  doubt  as  to  the  meaning  of  the 
passage,  look  to  the  letter  written  by  Sfr.  Pitt 
to  Mr.  Froet,  in  which  it  is  said,  that  Reform 
'^  is  essentially  necessary  to  the  independence 
of  parliament,  and  the  liberty  of  the  people.'' f 
Down  to  this  day  strong  language  is  always 
used  in  petitions  on  that  subject  and  never 
objected  to,  except  when  the  House  of  Com- 
mons is  denied  to  represent  the  people,  or 
matter  is  introduced  against  the  House  that  is 
not  relevant  to  the  object  of  the  petition. 

It  has  been  laid  down  by  constitutional 
lawyers  and  statesmen,  by  lord  Thurlow,  by 
Mr.  Pitty  and  Mr.  Fox,  that  where  the  language 
is  expressive  of  the  grievance,  however  strong 
it  may  be,  it  is  justifiable.  I  therefore  submit, 
that,  as  it  is  competent  to  put  such  language 
into  a  petition  to  parliament — ^as  such  lan- 
guage has  not  been  held  objectionable  in  the 
House  of  Commons,  it  cannot  be  considered 
as  seditious,  or  as  tending  to  bring  the  legisla- 
ture into  contempt.  If  such  language  is  law- 
ful in  petitions  to  parliament,  then  it  must  be 
held  lawful  in  the  speeches  and  resolutions 
made  at  meetings  pi^paratory  to  such  peti- 
tions. For  there  would  be  an  inconsistency 
and  absurdity  in  saying,  that  such  language 
might  be  lawfully  used  in  a  petition,  which  if 
used  in  discussing  whether  it  should  be  in- 
serted in  the  petition  would  be  unlawful.    If 

>   ■  ■   ■        »   1   II     I  H      III    ■       .1      W^— —■  I        11    III     ,11      .— .PW«— .^W^MMW^— — " 

*  1  How.  Mod.  St.  Tr.  493,  note. 
t  1  How.  Mod.  St.  Tr.  494,  note. 


it  should  be  neeessary,  we  shall  make  out  to 
the  satisfaction  of  your  lordships  and  the  jury, 
thatthe  language,  even  as  stated  in  the  indid- 
ment,  does  not  amount  to  sedition. 
Having  stated  thus  much,  I  conceive  I  have 

3«ned  the  nature  of  the  defence  we  mean  to 
ead,  at  sufficient  lehgth  to  make  the  oppo- 
site sHle  of  the  bar  aware  of  the  nature  of^our. 
defence,  and  I  think  it  unneceisary  to  detain 
your  lordships  any  longer. 

Lord  Justice  Clerk. — ^It  is  a  perfectly  fair 
and  distinct  statement. 

Mr.  Mrey,'^!  appear  here  in  behalf  of 
Thomas  JBaird.  k  suppose  we  are  all  agreed, 
that  it  it  the  right  and  province  of  ^the  jury  to 
take  into  consideration  both  the  facts  and  the 
law  of  the  case;  first,  to  find  whether  the  fiicts 
libelled  are  proved ;  and  then  to  judge  of  the 
import  of  the  facts  so  proved.  We  have  no 
desire  to  quash  the  trial  in  any  prelimioaiy 
stage  of  the  proceedings ;  and,  notvcithstand* 
ing  some  incorrect  stater,  ents  in  the  libel,  as 
we  do  not  wish  to  shrink  f^om  investigation, 
we  shall  not  trouble  your  lordships  vriUi  any 
preliminary  objections  to  the  relevancy. 

I  have  little  farther  to  state  in  addition  to 
the  written  defences.  Mr.  Baird  is  a  ^mer- 
chant in  Kilmarnock,  and  has  always  main- 
tained, not  only  an  irreproachable  but  a  re- 
spectable character  in  the  estimation  of  both 
his  superior  and  equals.  He  also  has  served 
his  country  in  a  military  capacity,  and  held, 
successively,  commissions  in  different  bodies 
of  volunteers.  In  the  last  corps  to  which  he 
vras  attached,  he  served  down  till  ihe  dissolu- 
tion of  the  volunteer  system  in  1813,  when  the 
allowances  which  had  been  given  to  them 
were  taken  «way ;  and  his  conduct,  character, 
and  sentiments,  were  always  considered  loyal, 
respectable,  and  praiseworthy. 

He  also  had  entertained  ideas,  the  wisdom 
and  propriety  of  which  cannot  here  be  made  a 
subject  of  discussion :  But  to  what  he  consi- 
dered as  defects  in  the  constitution,  he  wished 
to  apply  none  but  constitutional  remedies.  A 
spectator  -of  the  general  distress  around  him, 
and  a  participator  in  it,  he  believed  that  the 
evil  was  ascribable,  at  least  in  part,  to  a  de- 
fective representation  in  the  Commons  House 
of  Parliament;  and  he  therefore  thought  it 
proper  to  present  a  respectful  petition  to  the 
legislature  on  the  subject.  He  attended  the' 
public  meeting  which  assembled  for  that  pur- 
pose ;  but  he  did  not  take  any  part  in  tlie  dis- 
cussion, not  being  gifted  with  powers  of 
oratory,  nor  wishing  to  obtrude  himself  on  the 
public  notice.  He  did  however  attend  the 
meeting,  and  he  heard  the  speeches — which 
were  not  so  violent  as  they  have  been  repre- 
sented. 

Some  expressions  were  at  the  time  repit)- 
bated  by  him,  as  tending  to  throw  an  odium 
on  the  geneml  cause  of  Reform ;  and  after- 
wards, when  it  was  determined  that  some 
account  of  the  proceedings  should  be  publisbei^, 
and  the  orators  gave  in  t^if  tpeeckes  to  the 


131 


and  Thiuu  Bamlfor  Sidiliint. 


A.  D.  1817. 


CM 


commitee  for  pablieatioD,  he  repeated  his  oik 
jectioDs  ftgatost  printing  Mveral  passagM  which 
appeared  to  him  to  be  improper ;  bttC  he  was 
oTemikd  by  a  majority  ot  the  committee,  who 
wished  a  full  publication  of  the  proceedings. 
As  the  fuoda  of  the  petitioners  were  low^  it 
eocurred  to  the  committee  that  some  small 
pittance  might  be.c<41ected  from  the  publiea- 
tion,  to  defray  the  expenses  necessary  for  the 
pfepaiatioa  dT  the  petitions.  In  this  way,  he 
oonaemed  to  the  publiealioRy  but  at  the  same 
time  protested  against  puUisluDg  any  impropet 
ezpccssions ;  but  not  hayiag  any  idea  (as  such 
a  oiscoveiy  indeed  had  not  then  been  made  in 
any  quarter)^  that  the  expressions,  tfaoagfa 
censarable^  were  of  a  naittre  to  infer  criminal 
Gonseqaeneesy  be  gare  no  critical  attention  to 
the  minute  contents  of  the  publication,  nor 
considered  himself  responsible  for  them.  In 
Older  to  forward  the  end  in  ?iew,  which  was 
not  to  excite  violence  or  sedition,  but  merely 
to  raise  money,  it  was  determined  that  the 
members  of  Ae  committee  should  distribute 
and  sell  as  many  copies  of  the  pamphlet  as 
possible ;  and  my  client  agreed  to  sell  some  of 
^ibem. 

Tbese  are  the  facts  of  the  case.  As  to  the 
leleTancy,  mnch  will  depend  on  the  interpre* 
tation  to  be-  given  to  the  words  libelled  on. 
We  do  not  think  it  necessary  at  present  to  say 
any  thing  farther  on  that  point,  as  we  shaU 
prove  that  the  expressions  used  were  materially 
aifierent  from  those  lib^ed  in  the  indictment. 
When  tba  tets  are  disclosed  in  the  evidence, 
we  shall  have  a  fitter  opportunity  for  remark* 
ing  on  them. 

Lord  AdvoaUe. — ^It  is  unnecessary  for  me  to 
say  any  thing  as  to  the  candid  statement 
which  has  been  made  on  the  other  side  of  the 
bar.  I  admit  that  it  is  not  only  the  right  of 
the  jury,  but  that  it  is  their  bouaden  duty  to 
hay  upon  their  oaths,  whether  the  natter 
charged  is  sedition  or  not.  In  that  I  concur 
with  my  teamed  friends,  and  therefore  I  necfd 
say  ttodiing  more. 

Lord  Juttice  Clerk. — ^Your  lordships  have 
heard  what  has  been  said  on  behalf  of  the  pri- 
soners, and  what  has  been  said  by  the  lord 
advocate.  I  have  to  ask  your  lordships,  whe- 
ther you  have  any  observations  to  offer  on  the 
relevancy  of  this  indictment. 

iiovd  Hermand. — ^I  am  of  opinion  that  the 
indictment  is  relevant ;  and  I  think  there  can 
be  little  doubt  on  the  point  with  those  who 
bear  me.  The  learned  gentleman  who  opened 
the  defence  admitted,  that  an  attack  on  parlia* 
ment  oonstitntes  sedition;  adding,  that  his 
client  did  not  apply  his  expressions  to  the 
legislature,  but  to  the  ministers  of  the  day.  It 
nay  be  so,  but  that  is  tiot  what  is  stated  in 
this  indictment,  to  which  alone  I  can  attend  at 
ptesent.  Past  of  the  chaige  goes  veiy  deepv 
They»  iMt  on  pretence  of  a  dntiful  petition. 
Sttch  pretences  ace  always  made.  T^%  your 
lovdships  will  attend  to  what  we  find  stated : 
^  Ijdt  Of  lay  onir  petitiena  at  the  fwit  of  &e 


throne,  where  sile  o«r  august  prince,  whoso 
gracious  nature  will  incline  his  ear  to  listen  to 
the  cries  of  his  people,  which  he  is  bound  to 
do  by  the  laws  of  the  country."  AH  this  is 
extremely  good ;  but  what  follows  ?  "  But, 
should  he  be  80  infatuated  as  to  turn  a  deaf 
ear  to  their  just  petition,  he  has  forfeited  their 
ellegiaace.  Yes,  ray  fellow-townsmen,  in  such 
a  case,  to  h^U  toUh  ow  aUtgUmce/'  Is  that  not 
sedition?  Accompanied  with  an  overt  act, 
would  it  not  be  high  treason  ?  I  have  no  hesi- 
tation in  saying  it  would. 

Things  may  turn  out  differently  on  the  proof 
from  what  is  represented  in  the  indictment ; 
and  I  should  n^ice  to  find  it  so.  But,  with 
regard  to  the  speech  and  the  publication,  aa 
here  stated,  is  uiere  not  a  direct  attack  on  tho 
legislature  ?  Another  pflMsage  is :  ''A  House 
of  Commons,  but  the  latter  is  corrupted ;  it  i» 
decayed  and  worn  out;  it  is  not  really  what  it 
is  called;  it  is  not  a  House  of  Commons.^ 
We  are  told  this  is  only  an  attack  on  the  mi- 
nisters. It  b  an  attack  on  the  House  itself. 
Any  petition  containing  such  expressions,  I 
always  understood,  would  be  rejected  by  the 
Houee  of  Commons.  "  At  present  we  have 
no  representatives ;  they  are  only  nominal,  not 
real;  actite  only  in  prosecuting  their  own 
designs,  and  at  the  same  time  telling  us  that 
they  are  agreeable  to  our  wishes.''  Is  that  not 
a  broad  attack  on  the  legislature  T  I  shsll  bo 
glad  if  the  facts  charged  are  not  made  out^ 
They  cleaity  amount  to  sedition  as  they  are 
stated. 

Lord  GiUieSj-^-l  concur  in  the  opinion  which 
I  have  now  heard,  so  far  as  to  think  the  indict- 
ment relevant.  I  have  no  doubt  that  it  ia 
relevant,  and  that  the  ordinary  interlocutor 
must  be  pronounced.  The  indictment  states, 
that  at  a  meeting  '*  attended  by  a  great  multi- 
tude of  persons,  chiefly  of  the  lower  orders," 
one  of  tae  panels  delivered  a  certain  spee<^ 
which  speech  was  afterwards  ciixulated  by  the 
other  prisoner.  » 

As  to  the  nature  and  objects  of  the  meeting, 
no  information  is  given  in  the  indictment ;  I 
must  therefore  hold  it  to  have  been  a  lawful 
meeting.  But  the  libel  goes  on  to  state,  that 
^  panel  "  wickedly  and  feloniously  delivered 
a  speech  containing  a  number  of  seditious  and 
inflammatory  remarks  and  assertions,  calcu* 
lated  to  degrade  and  bring  into  contempt  the 
government  and  legislature,  and  to  withdraw 
Uierefrom  the  confidence  and  affections  of  the 
people,  and  to  fill  the  realm  with  trouble  and 
dissention.''  This  is  certainly  a  charge  of 
sedition ;  and,  if  the  expressions  cited  in  the 
indictment  were  delivered  for  the  purpose 
there  statikl,.  they  must  bo  regarded  as  sedi*> 
tiotM.  I  need  deliver  no  opinion  farther  at 
present,  for  the  facta  chaiged  in  the  indict- 
ment, an^f  stUl  more,  the  wieked  and  febniou» 
intentione  therein  aseribed-  to-  them,  are  denied 
by  the  panels.  AJl  these  matters  remain  to  be 
the  subject  of  proof;  and  I  should  be  arvogiat- 
ing  to  myself  the  province  of  the  jury  and  Of 


w 


57  GEORGE  IIL 


Triid  ofAlexatukf  M*Larnt 


[16 


your  lordship,  if  I  said  aaj  thing  farther  at 
this  period  or  the  trial ;  for  after  the  proof  only 
can  any  satisiactory  opinion  be  given  on  the 
subject. 

Lord  PitnttUy,—^Swm  after  the  printed  copy 
of  this  indictment  "was  put  into  my  hands,  I 
considered  it  with  a  view  to  the  question  of 
relevancy;  and  although  the  counsel  for  the 
panels  have  not  disputed  the  relevancy  of  the 
indictment,  but  reserved  to  themselves  the 
liberty  of  making  such  observations  as  may 
appear  to  them  proper  after  a  proof  shal)  have 
been  led,  it  would  have  been  the  province  and 
the  duty  of  this  court  to  stop  the  trial  at  this 
stage  if  it  had  appeared  to  us  that  the  indict- 
ment is  not  relevantly  laid. 

ThMefence  has  been  very  properly  explain- 
ed by  the  counsel  for  the  panels ;  and  I  shall 
be  happy  if  they  make  out  that  defence,  either 
in  exculpation,  or  in  alleviation  of  the  crime 
charged  in  this  indictment.  The  only  question 
at  present  is  as  to  the  relevancy  of  the  indict- 
ment ;  and  I  have  no  hesitation  in  saying,  that 
in  my  opinion,  it  is  relevanf ;  nnd  that,  there- 
fore, the  ordinary  interlocutor  should  be  pro- 
nounced. 

The  major  proposition  of  the  indictment 
charges  sedition  in  general  terms.  This  is  an 
unexceptionable  charge,  which  has  never  been 
objected  to,  that  I  know  of,  but  in  one  case, 
where  the  question  reg^ding  it  was  argued, 
and  the  objection  was  repelled.  I  allude  to 
the  case  of  Sinclair.*  It  is  known  to  every 
lawyer  that  sedition  is  a  crime  recognised  by 
the  laws  of  this  country.  It  is  a  crime,  in- 
deed, the  trial  and  punishment  of  which  must 
be  coeval  with  government. 

It  IS  stated  that  the  one  panel  made  a  speech 
which  contains  inflammatory  remarks  and  se- 
ditious expressions,  and  that  the  other  panel 
circulated  a  pamphlet  containing  that  and 
other  seditious  speeches.  Paragraphs  of  it 
have  been  read,  and  I  will  not  consume  time 
with  reading  or  commenting  on  any^f  them 
at  present.  No  person  who  reads  them  can 
doubt,  that  the  general  nature  of  them  is  to 
excite  commotion,  and  to  prepare  the  way  for 
resistance  and  for -overturning  the  government. 
That  this  is  the  general  tendency  of  (he  facts 
charged,  no  person  can  doubt.  It  would  also 
be  wasting  the  time  of  the  Court  to  read  the 
passages  of  the  luminous  commentary  by  Mr. 
Hume  on  the  crime  of  sedition,  or  to  refer  to 
the  authorities  and  the  precedents  which  have 
occurred  in  this  court. 

The  counsel  for  the  panels  are  correct  in 
stating,  that  it  is  the  province  of  the  jury  ulti- 
mately to  determine,  not  only  as  to  the  facts  of 
the  utterance  and  the  publication  of  the  ex- 
pressions mentioned  in  the  libd,  but  also  with 
regard  to  the  law,  whether  the  expressions  are 
to  be  held  seditious  or  not.    On  that  point 

—  ...   11   1..I      1    I    M     I     .,     I,  I       I  ,1    III    II        I   ,  I    I 

*  See  the  debate  on  the  Relevancy  of  the 
Indiotment  in  Smdair's  wse^  2  Blow,  Mod.  St. 
Tr.  784. 


there  can  be  no  doubt;  atid  there  never  was 
doubt  as  to  it  at  any  period  of  the  history  of  this 
court.  The  Court,  however,  in  considering  of 
the  relevancy,  must  determine  in  the  first  in- 
stance whether  the  expressions  complained  of 
appear  to  them  to  be  seditions,  and  to  amount 
to  the  crime  of  sedition ;  and  on  this  subject  I 
cannot  entertain  the  shadow  of  doubt. 

Lord  Retton. — I  have  no  dpubt  as  to  the  re- 
levancy of  the  indictment.  We  have  nothing 
to  do  at  present  with  the  truth  of  the  state* 
ments  in  it.  The  only  question  now  is,  whe- 
ther the  averments  of  the  public  prosecutov 
are  put  in  proper  shape  and  terms  in  this 
charge.  The  jury  will  decide  not  only  on  the 
bare  fhcts^  but  on  the  legal  import  of  them, 
and  will  say  whether  the  panels  are  guilty  or 
not  of  the  crime  of  sedition. 

I  have  no  doubt  of  the  sufficiency  of  the 
averments  made  by  the  public  prosecutor.  He 
has  averred  circumstancesy  which,  if  proved, 
amount  to  sedition.  His  averments  amount  to 
this,  that  what  was  said  and  published  was  not 
only  calculated  to  produce  pernicious  conse^ 
quences  affecting  the  government  and  legisla-^ 
ture,  but  must  have  been  meant  for  seditious 
purposes.    The  indictment  states,  that  the  pur- 

r>se  of  the  panels  was  vricked  and  felonious; 
consider  that  the  speech  said  to  have  been 
delivered  by  one  of  tne  panels  is  seditious  in 
all  its  parts,  and  tends  to  excite  discontent  in 
the  country.  It  was  delivered  in  the  open  air, 
before  a  multitude  of  the  lower  orders  assembled 
to  hear  it.  The  panel  is  alleged  to  have  stated 
that  their  sufferings  were  intolerable,  and  in 
coarse  and  calumnious  language  to  have  said^ 
**  A  base  oligarchy  feed  their  filthy  vermin  on 
our  vitals,  and  rule  us  as  they  will.^'  I  consider 
this  expression  as  tending  directly  to  vilify  the 
government,  and  weaken  the  affections  of  the 
country  towards  its  legislature.  In  this  speech 
he  talks  of  successful  resistance.  He  speaks 
of  the  reformation,  and  of  the  resistance  made 
to  the  English  when  their  progress  was  stopped 
at  Bannookbum.  What  were  the  feelings 
meant  to  be  excited  in  the  audience  ?  He  was 
attempting  to  degrade  the  government,  in 
order  to  stimulate  his  hearers  to  resistance ; 
and,  to  give  them  confidence,  he  mentioned 
former  instances  of  successful  resistance.  No 
doubt  he  proposes  that  the  petition  shall  be 
laid  at  the  foot  of  the  throne ;  and  he  pays  a 
compliment  to  t1|e  Prince  Regent.  But  what 
does  he  add  ?  **  Should  he  be  so  infatuated  as 
to  turn  a  deaf  ear  to  their  just  petition,  he  has 
forfeited  theit  allegiance.  Yes,  my  fellow- 
townsmen,  in  such  a  case,  to  hell  with  our 
allegiance.**  Is  there  no  intimidation — is  there 
no  threat  intended  by  such  language  ?  It  is 
true  the  expression  ^*  just  petition*'  is  employ- 
ed ;  but  who  is  to  judge  whether  the  petition 
is  just  ?  Were-4l)09e  at  the  meeting  to  judge  ? 
It  was  in  efiect,  saying,  if  our  petition  is  not 
listened  to,  we  are  alMolved  from  our  alle* 
glance.  If  the  expressions  shall  be  proyed^ 
Uie  language  is  seditious  in  a  high  degree.  • 


171 


ttmi  T%omag^i^irdfir  SkdHwn. 


A.  D:  1817. 


LIS 


Lord  Justice  Clerk, — I  entirdy  concur  in  the 
Opiiiiong  which  have  been  deliyered  as  to.  flie 
wofiaee  and  doty  of  the  jury  in  a  case  of  thi» 
kod.  It  XI  not  necessary  ror  me  to  state  any 
tfaioff  further  at  present,  than  that  no  douU 
can  he  entertained  that  this  indictment  is  rele» 
TBnt. 

Alexander  H^ren  and  Thomas  fiaird : 
Attend'to'tfae  interlocutor  of  the  court  as  to 
the  relevancy  of  this  indictmcpl. 

VOL.  XXXIII.  » 


But  ibis  pand  is  not  only  accused  ef  ex- 
pressing himself  in  this  seditions  manner  wfiile 
in  the  beat  «f  addressing  his  audience,  but  he 
is  also  said  to  hare  delivered  up  Uie  MS.  of  his 
speech' in  order  to  be  printed.  If  thisbe  proved, 
then  not  only  did  he  use  seditious  language  in 
the  heat  of  his  address,  for  which  he  might 
have  been  in  a  certain  degree  exousablCy  if 
momentarily  not  master  of  himself,  but  he  af- 
terwards did  the  utmost  in  his  power  to  circu* 
late  this  sedition.    It  was  not  likely  that  the 
speech  would  be  heard  of  beyond  the  place 
where  it  was  delivered,  witliout  some  eflbrt 
yrete  used  to  disseminate  it,  but  he  shewed  his 
anxiety  to  obtain  for  it  a  wider  circulation. 

The  indictment  is  clearly  relevant  as  to 
M'Laren.  It  is  likewise  so  as  to  Baird*  He 
was  present  at  the  meeting.  I  do  not  say  the 
purpose  of  the  meeting  was  illegal.  Baiid  be- 
came the  trumpet  of  that  meeting,  and  is  said 
lo  have  circulated  an  account  of  this  very 
speech,  which  is  charged  as  having  been  de- 
livered by  McLaren.  If  the  public  prosecutor 
proves  his  averments,  he  makes  out  that  a  di- 
rect attack  was  made  on  the  legislature,  and  in 
strong  terms  oa  the  House  of  Commons.  "  No 
nobleman— no  clergyman — no  naval  or  mili- 
tary officer — in  short,  none  who  held  places, 
or  received  pensions  from  government,  had 
any  right  to  sit  in  that  House.*'  And  again, 
**  Is  it  any  wonder,  my  friends,  that  this  coud- 
t^is  brought  to  its  presentunprecedented  state 
Of  misery,  when  the  rights  of  the  people  have 
been  thus  wantonly  violated?^'  And  in  ano- 
ther place  it  is  said,  **  we  have  these  twenty- 
five  years  been  condemned  to  incessant  and 
unptoalleled  slavery,  by  a  usurped  oligarchy, 
who  preteqd  to  be  our  guardians  and  represen- 
tatives, while,  in  £act,  they  are  nothing  but  our 
inflexible  and  determined  aienries." — **  They 
have  robbed  us  of  our  money,  deprived  us  of 
&aa  friends,  violated  our  rights,  and  abused 
our  privileges." — *•  At  present  we  have  no  re- 
presentatives ;  they  are  only  nominal,  not  real ; 
active  only  in  prosecuting  their  own  designs, 
and  at  the  same  time  telling  us  that  they  are 
i^greeable  to  our  wishes."  If  this  is  not  a  di- 
rect attack  on  a  branch  of  the  legislature,  I  do 
not  know  what  can  be  an  attack  on  it. 

Our  present  business  is  only  to  judge  of  the 
lelevancy  of  the  indictment,  and  then  a  jury 
w31  judge  both  of  the  law  and  the  fiicts  of  the 
case.  If  they  think  neither  of  the  panels  used 
these  expressions,  or  circulated  them,  or  if  tlrey 
are  of  opinion  that  they  are  not  inflammatory 
and  seditious,  it  is  thenr  part,  not  ours,  to  find 


*^  The  Loid  Jaetiee  Qezfc  and  lords  com- 
missioners of  justiciary  having  considered  the 
crimifMd  indictment,  raised  and  pursued  at  ihe 
instance  of  bis  majesty's  advocate,  for  his  flKa« 
jesty's  interest,  against  Alexander  McLaren 
and  Thomas  Baird,  panels,  th^  find  the  in- 
dictment relevant  to  iiifer  the  pains  of  law ; 
but  allow  the  panels,  and  each  of  them,  to 
prow  all  fecto  and  eiocamstances  that  may 
tend  to  exculpate  them,  or  either  of  them,  of 
alleviate  their  guilt,  and  remit  the  panels,  with 
the  indictment  as  fouad  relevant,  to  the  know- 
ledge of  an  assize. 

«  0.  BoTii,  I.  P.  D." 

The  following  persons  were  then  named  to 
pass  upon  the  assize  of  the  panels. 

James  Watson^  of  Saughton. 
John  Dodds,  farmer  at  Saughton  Mill. 
John  DrysdaU  farmer,  Ciermiston. 
Daoid  Pringle,  of  Blegbie. 
J<^  Stewart,  of  Binny. 
John  Colder,  farmer  at  Drumcross. 
John  Rusielf  farmer  at  Mosside. 
William  Marshall,  jeweller,   South    Bridge^ 

Edinburgh. 
Archibald  JMP^EmZtry,  haberdasher  in  Edinburgh. 
John  Baxter,  confectioner  there. 
Jamei  Hawden,  jeweller  there. 
William  Kenne&f,  glover  there, 
WUUam  Umdsay,  wine-merchant,  Leith.  . 
John  Gowan,  wood-merchant  there. 
Jame$  Stoddart,  wine-merchant,  Edinburgh. 

Lord  Justice  Cktk, — Are  the  dedaratioiis  of 
^e  prisoners  admitted  f 

lir.  Oerk. — ^Yea,  my  loid. 

SVIDEKCX   FOR  TB£   CaOWIT* 

Andrew  Tinnie  sworn. — Examined  by 
Mr.  Drummand, 


You  are  a  merchant  in  Kilmarnock  ?— Yes. 

Do  you  know  the  Dean  Park  in  the  vicinity 
.of  Kilmarnock  ?-^I  do. 

How  far  is  it  firom  Kilmarnock  ? — ^About  half 
a  mile. 

Do  you  remember  that  a  public  meeting 
was  held  at  the  Dean  park  on  the  7th  of  Dec« 
last?— I  do. 

Was  there  a  great  number  of  persons  at  it  ? 
—'I  think  about  4,000. 

A  great  number  of  the  lower  orders?— 
Yes. 

Do  you  remember  that  speeches  were  made 
at  that  meeting  ?-~  Yes. 

Who  opene4  the  business? — Alexander' 
M*Laren.         ^ 

Is  that  the  person  there? — It  is. 

He  made  a  speech  ?-^Yes. 

What  was  the  speech  about,  sir  7-^ About 
the  business  that  the  meeting  was  called  for^* 
which  was  for  the  purpose  of  deliberating  on 
the  best  mode  of  petitK>ning  for  parliamentary 
reform. 

Do  you  remember  any  part  of  his  speech 
any  of  the  words  that  he  us^  ?— Tfothing  par- 
ticular, except  one  passage  near  the  end.  ^ 

C 


r 


19] 


£7  GBORGE  III. 


7rMf  qfAtumndfff  M*Larem 


[20 


Repeat -thd  passage  as  near  as  you  rametDber 
it?— «<  We  wiU  lay  our  petidons  at  the  foot  of 
the  throne  (or  let  us  lay^  I  do  not  remember 
exactly  which),  where  stts-our  august  prince, 
whose  generous  -  nature  will  incline  his  ear  to 
hear  the  cries  of  hi»  people,  which  lie  is  bound 
to  d6  by  tbe  constitutional  laws  of  the  country ; 
and  we  *  are  thereby^  •bound  to  give  him  our 
allegiance.  But  if  he  should  be  so  infetuated 
as  to  turn  a  deaf  ear  to  the  ireneral  cries  of  his 
people  (or  Toiee  of  his  people^  I  do  not  know 
which),  to  hell  with  allegiance.^ 

Is  that  the  whole  of  the  passage  P — ^The 
whdie  of  the-  passage,  as  fur  a»  I  recollect. 

Lord  AdoocaU.—!  wish  to  know  whether 
M'Lareu  in  his  speech  stated  that  a  number  of 
resolutions  had  been  drawn  up  by  the  com- 
mittee, which  were  about  to  be  read' f— Yes, 
about  the  close  of  his  speech,  after  the  expres- 
sion I  alluded  to,  I  think. 

Mr.  Drummond. — Did  he  recommend  any 
body  to  be  called  to  the  chair  of  the  meeting  ? 
— He  said  the  committee  unanimously  recom- 
mended Mr.  Johnstone. 

And  did  he  propose  him  to  be  elected  to  the 
chair  ? — Yes,  I  understood  so^ 

He  was  called  to  the  chair  ?—  He  was  called- 
to  the  chair. 

Did  vou  see  Mr.  Johnstbae  in  the  other  room 
to-dayr— Idid. 

Did  you  ever  see  a  printed  account  of 
M'Laren's  speech? — ^Yes. 

Was'  it  in  an  account  of  the  proceedings  of 
the  meeting  ?L— In  a^  pamphlet. 

Is  that  the  pamphlet? 

[The  pamphlet  wak*  handed  t^the  witnessi] 

That  is  one  of  them. 

The  rest  are  the  same  ?—I  understood  so. 

Did  you  read  McLaren's  speech  ? — ^YeS. 

Did  It  appear  the  same  as  that  delivered  at 
the  meeting  ? — No ;  there  was  a  difference  par- 
ticularly as  to  that  passage. 

L(trd  JvUiee  Cterib— You  mean  the  passage 
in  reference  to  allegiaoee? — ^Yes,  my  lord. 

l»Tr.  Dr&mm(M<f.^~Wnr  you  point  outtaus 
particularly  what  is  the  difference  between  that 
printed  passage  and  what  he  said  ?^— There  is 
one  part  which  I  think  is  omitted. 

What  is  that  ?r~"  And  we  are  thereby  bound 
t6  give  him  our  allegiance.'' 

Do  you  observe  any  other  difference? — I 
thinK  tnat  instead^  of  **  to  their  just  petition,*' 
he  said,  **  to  the  general  cries  or  roice  of  his 
people.*^ 

Lord  JuUk€  Cierk.-^^Jvai  petition"  are  the 
words  you  see  there ?'-^Yes,  my  lord. 

Mr!  I^rummond, — Any  othfer ' difference?— 
The  words  *'  he  has  forfeited  that  allei^ance," 
were  never  mentioned  that  I  beard ;  and  nor- 
thing that  1  remember,  but  ^  to  hell  with  alle- 
giance.'' 

'  Mr.  Clmrk  wisbed:tc^&iiow  what  the  witness 
had  said* 


Mr.  Dnmmmd, — Tbe  witness  did  sot  hear 
the  words  **  he  has  forfeited  that  allegiance.** 

WUnen, — That  is  what  I  meant  to  say.  **  To 
hell  with  allegiance,"  is  all  that  I  heard  at  the 
meeting. 

Had  you  any  charge  as  to  printing  tliat  pam- 
phlet?— I  was  appointed  ta  a  charge  about 
thej^rintinv^  but  I  never  acted  to  it. 

Who  had  die  charge  along^with  you  T — ^Mr. 
Bairdl 

And  who  else  ? — Mr;  Walter  Andrew. 

A  Writer?— Yes. 

You  took  no  charge  though  you  were  ap- 
pointed to  superintend  the  printing  ? — I  was 
appointed,  but  never  was  at  uie  meeting  called 
for  the  purpose. 

How  were  you  appointed  to  that  charge? — 
By  the  committee. 

Was  Baird  a  member  of  the  committee  ? — 
He  was. 

Do  you  know  who  printed  the  statement  oC 
the  proceedings? — It  was  given  in  to  Mr» 
Crawford,  I  understood^ 

Cburf,— That  will  not  do. 

Mr.  Drtdirmom^.-^Were  you  ever  present  at 
the  printing  f — I  was,  in  Crawford's  shop. 

Did  you  ever  get  any  copies  of  the  printed* 
statement  from  Crawford  ?^— I  did-  get  from: 
Crawford  printed  copies. 

Court, — Did  you  buy  them  ?<— I  was  to  pay 
for  them. 

Lord  Etrmand. — Then  you  did  buy  them  ^ 
— I  did  not  buy  them  particularly. 

Mr.  Drummond, — Do  you  know  whether 
Baird  sold  any  of  them? — ^He  did. 

t>id  Baird  ever  tell  you  so  i— He  said  hei 
got  quit  of  them  ;  but  he  did  not  say  he  sold ' 
ttiem. 

Did  he  say  he  got  quit  of  them  all  ? — ^He 
said  so. 

Did  he  ever  get  any  from  you  ? — ^About  fonr 
doxen. 

They  were  of  those  you  got  from  Crawford  T 
—They  were. 

Did  you  give  him  all  you  had  ? — ^No,  I  had 
eleven  or  thereby  left. 

Had  you  any  conversation  afterwards  with 
Baird  about  those  remaining?'— I  am  not 
certain  if  I  had.  I  do  not  recollect  at  present 
if  I  had. 

I  think  vou  said  Baird  mentioned  he  had  got 

quit  of  all  his.    Did  he  make  any  remark  on 

^ournot  having  got  quit  of  yours  ?— 'I  said  I  had 

still  eleven  or  thereby;  and  he  seemed  surprised 

as  he  had  got  quit  of  all  bis. 

Lord  Hermttnd,—W\aX  did  you  understand 
by  getting  quit  of  them  ? — Tlie  committee  had 
liberty  to  ger  what  they  wanted ;  and  copiea 
ward  given  to  them  when  applied  for. 

Cotir^— The  witness  does  not  understand 
the  question.  Was  any  price  taken  for  them  f 
— I  understood  they  were  to  be  4d.  each ;  thai 
this  was  fixed  by  the  committee. 


dil 


wmi  nomas  Bairdjir  SidHian, 


A.  D.  I«17. 


[33 


Wtre  tliey  disposed  of  by  sale  or  by  gift  ? — 
I  do  not  know  woether  Baird  sold  them  or  not. 
He  was  to  pay  for  them. 

LordAdBoade. — Did  you  ever  go  to  Craw- 
ford's with  fiaird  to  inquire  after  the  .publica- 
tion ? — I  did. 

What  did  yoo  ask  ?—  We  asked  if  any  of  the 
pamphlets  were  ready. 

Which  Off  you  asked  ? — I  am  not  certain. 

Yon  both  went  for  diat  purpose  } — ^Yes. 

Andrew  Fimde  cross-examined  by  Mr.  Jtffrejf 
for  Thomas  Baird. 

Yon  have  mentioned  that  yon  (wo  wese  both 
members  of  the  committee  for  arranging  about 
this  meeting? — Yes. 

.  Were  there  many  other  members  ? — From  20 
^  30>  I  think. 

•  These  were  eonstituted  before  the  meeting 
was  held  ? — Part.  There  were  moK  added  a!& 
ierwaras* 

.  Was  any  notice  given  to  4he  magistrates 
about  the  meeting? — ^Mr.  Baird  and  I  were 
nominated  to  call  npon  the  magistrates^  toin- 
£>rm  them  of  the  meeting. 

Yon  went  ? — ^I  did  not.  Mr.  Baird  said,  he 
went. 

Did  he  report  that  the  magistrates  had  no 
-objeotions  to  the  meeting  ? — ^He  did. 

Tbere  was  no  interference  of  the  magistrates? 
—None. 

Were  yoopresent  at  the  meeting? — ^Yes. 

Was  Mr.  Uaird  there  ? — ^He  was. 

Did  he  speak  ? — ^No. 

Did  yon  hear  him  make  any  remarks  es- 
-preasing  satis&ction  or  dissatisfaction  -on  what 
was  said  ? — ^I  heard  htm  make  a  remark  about 
the  fMosage  I  was  talking  of  in  Alexander 
McLaren's  speech  coneemiDg  allegiance. 

What  did  he  say? — He  said  it  was  a  pity  it 
Jiad  been  spoken. 

He  disapproved  of  it  ?— Yes. 

Yon  said,  yoo,  Mr.  Andrew,  and  Mr.  Baird, 
were  appointed  to  take  char|pe  of  the  printiug 
«.of  an  account  of  the  proceedings? — Yes. 

Was  any  motive  alleged  for  the  pdoting^ — 
At  wasTor  defraying  me  expenses  attending 
the  meetiog. 

Was  there  any  discussion  at  the  meeting  of 
the  commitiee  about  the  proprie^  or  impro- 
priety of  printing  the  wnole  of  what  had 
been  so  stated  at  the  public  meetiDg  ?»Yes, 
there  was. 

Did  any  body  object  to  the  printing  at  all  ? 
— ^I  think  two  were  not  for  printing  at  all ;  Mr. 
Jolmston,  and  Alexander  McLaren. 

Was  M'Lareo  a  member  of  Che  committee  ? 
—Yes. 

Did  Mr.  Baird  take  any  part  in  that  discus- 
jnon  ?^I  do  not  remember  that  he  did. 

Was  there  any  discussion  ubout  the  propriety 
«f  pnnliog  certain  parts?— Yes..  . 

Did  Mr.  fiaird  take  any  part  in  that  discus- 
«on?— Hedid. 

Was  he  for  printing  all  the  words  ? — ^No,  he 
not 

What  words  did  he  djeet  tO|  or  what  pas- 


sage ? — ^I  do  not  remember  any  other  -passage 
than  that  about  allegiance  in  McLaren's 
speech. 

What  did  lie  say  as  to  that  passage  ? — 
That  he  would  be  inclined  to  keep  it  out  alto- 
gether. 

Did  he  say  any  thing  ^Ise  about  it? — ^I  do 
not  remember  particularly  any  thing  else  ho 
said. 

Was  that  proposition  of  his  adopted  by  'the 
committee  or  not  ?— No ;  it  was  not. 

Did  it  appear  to  you,  that  Mr.  'Baiid  ai>* 
proved  or  not  of  that  passage? — He  disap- 
proved of  that- passage,  and  wished  it  to  be  l«t 
out. 

Did  you  understand  that  rii  4he  members  of 
the  committee  were  to  take  copi^es-of  thisstnte- 
ment,  to  forward  the  sale  of  it,  and  to  account 
for  the  4i.  for  each  copy? — ^Yes;  the  com- 
mittee were  at  liberty  to  -get  what  tiumber 
they  wanted, 'for  the  purpose  of  defraying  the 
expenses. 

bid  they  all  get  copies^?— <I  do  not  •know 
who  did  and  who  did  not. 

Mr.  Baird  keeps  a  shop  ?— Yes. 

Did  aUlhe  members  of  the -committee  "keep 
shops  ? — No. 

What  kind  of  a  shop  is  Mr.  Baird's  ?— A 
grocer's  shop. 

Has  there  been  any  other  generkl  meeting 
since  this  in  Dean  Park?—None  that  I  know 
of. 

Certain  resolutions  were  adopted  which  are  to 
be  found  in  the  printed  statement,  and  peti- 
tions 40  parliament  were,  in  coikformi^  to  them, 
prepared  and  forwarded  ? — Yes. 

Was  'there  any  disturbance  or  tumult  at 
Kilmarnock  since>that  date? — I  do  not  recol- 
lect of  any. 

Do  you  recollect  any  disturbance  recently 
before  that,  a  riot  about  meal  ? — ^Yes.    ^ 

Before  the  public -meeting  took  place,  about 
autuinn  ?— Yes;  I  do  not  know  the  exact  time 
when  it  was. 

Idond  Aivooaie. — ^You  said  that  Baird  disap- 
proved of  printing  the  passage  about  allegiance: 
do  yon  remember  whether  M'Laren  said  any 
thing,  and  what  did  he- state  about  that  passage? 
— ^I  think  he  said,  that  if  the  committee  thought 
there  was  any  thing  wrong,  he  would  rather  it 
were  kept  out  altogether. 
'  That  was  as  to  At  passagein  his  own  speech  ? 
—Yes. 

When  Mr.  Baird  objected  to  printing  the 
passage,  did  he  stale  his  reasons  why  he 
thought  it  an  improper  passage  to  be  printed  t 
— The  reason  was  not  stated  therei  that  I  re- 
member ;  but  when  he  and  I  were  talking  of 
it  by  ourselves.  ^ 

And  what  did  he  say  ?— He  said  to  me  it  was 
a  veiy  indecent  expression. 

He  slated  liothing  to  the  committee  of  his 
reasons  ? — ^Not  that  I  remember. 

Andrew  Finme  cross-examined  by  Mr.  QtwU 
for  AbeKender  McLaren. 

I  ask  the  witness  to  fook  at  the'  printe4 


33] 


57  GEOKGIC  HI. 


Trial  ofAtvumitr  M'Latm 


[34 


Speech,  and  find  tbese  vrofds, ''  The  fact  b,  we 
are  ruled  by  mea  only  solidtoaa  for  their  own 
aggrandisement"? — I  see  them. 

Were  these  words  spoken?— I  do  not  re- 
member. 

"  And  they  care  no  further  for  the  great 
l)0dy  of  the  people,  than  they  are  subservient  tu 
their  accursed  purposes.''  Was  that  spoken  ? 
I  do  not  remember.  I  paid  almost  no  atten- 
tion to  any  part  of  the  speech,  except  that  about 
allegiance. 

How  did  it  happen  that  you  remember  that 
passive  so  particularly,  and  none  of  the  rest  of 
the  speech  ? — ^It  strudc  me  particularly. 

Then  you  do  not  mean  to  pronounce  aa 
epinion  as  to  aay  thing  that  was  uttered  by 
M'LareDy  except  the  passage  about  allegiance? 
—No. 

Do  you  remember  what  passed  about  the 
opeaiug  of  this  meeting  ?  who  asked  McLaren 
to  open  it? — I  do  not  reipember  who  asked 
him. 

Did  he  rolanteer,  or  was  he  requested  to 
open  the  meeting  ? — He  was  backward  to  open 
the  meeting. 

And  he  was  asked  by  the  coomittee  ? — He 
was  asked  by  the  committee. 

When  was  he  asked  ?->At  a  meeting  of  the 
committee. 

Lord  Advocate. — How  many  days  before  the 
meeting? — I  am  not  certain. 

It  was  some  days  f — ^It  was  some  days,  I 
think. 

Mr.  Gerk. — Are  you  sure  it  was  some  days 
before  the  meeting  ? — I  am  certiun ;  for  imme* 
diatefy  or  the  night  before  the  meeting,  he 
said  he  was  in  doubts  whether  he  would  do  it 
or  not. 

Did  you  use  any  particular  means  to  keep 
tlie  passage  about  allegiance  in  your  recoUec* 
tion  ?— It  struck  me  so  forcibly  at  the  time, 
the  language  was  so  ttrong,  I  kept  it  in  my 
memory. 

You  fipientioned  other  passages.  What  part 
p(  the  passage  do  you  allude  to  just  now  ?  Did 
you  consider  the  whole  passage  strong  ? — ^The 
word  hell  struck  me.  That  was  the  particular 
part  I  thought  was  wrong.  I  did  not  consider 
.any  thing  wrong  in  the  rest  of  it  at  the  time. 

Did  you  write-  down  the  passage  P — No. 

Are  you  quite  confident  of  your  recollection 
of  the  whole  of  the  passage  f — I  am  quite  oon- 
6deat  it  was  very  near  to  what  I  repeated. 
Whether  the  words,  "  cries,"  or  "  voice,  were 
used,  as  I  said  before,  1  am  not  sure  of;  but  I 
am  confident  as  to  the  rest  of  the  pasaage. 

LordAdvoeate. — At  the  meeting,  had  McLaren 
any  paper  with  him  ? — I  saw  none. 

Did  you  ever  see  any  paper  with  his  speech 
on  it  ? — Never. 

Did  you  ever  hear  him  speak  of  the  terms  of 
it  after  it  was  printed  ? — I  recollect  of  him 
iayiag  repeatedly,  that  the  passage  about  alle- 
giance was  a  quotation  fvom  Shakespeare  which 
came  into  his  mind. 


When  did  he  first  say  that—  Was  it  at  the 
meeting  of  the  committee  ? — 1  do  not  recollect 
of  his  ever  saying  that  at  the  committee ;  but  I 
have  heard  him  repeatedly  say  so. 

WUliam  Merrie  sworn. — Exaniined  by 
Mr.  Drummond. 

Are  you  a  writer  in  Kilmarnock  ? — Yes. 

Do  you  remember  being  at  a  public  meeting 
held  near  Kilmarnock  on  the  7lh  December 
last  ?— Yes. 

Do  you  remember  the  speeches  made  at  that 
meeting  ? — Part  of  them. 

Who  made  the  first  speech?  —  Alexander 
McLaren. 

Is  that  the  man  behind  me  ?— Yes. 

Do  you  remember  any  part  of  his  speech  ?— 
Very  little  of  it. 

Do  you  remember  aay  words  near  the  oon- 
dttsion  of  it  ? — Yes. 

Can  you  repeat  them  ? — The  hindmost  part 
of  it  was,  ''^hell  with,"  or  '^Ibr  such  alle- 
giance." 

What  allegiance  was  that  be  was  speaking 
about  ? — If  I  remember  right,  he  was  wishing 
the  people  to  address  their  august  soTereign ; 
and  he  meant  their  allegiance  to  him. 

Did  he  give  any  reason  why  this  allegiance 
was  to  go  to  hell  ? 

Mr.  C/erfc.— He  has  not  said  that. 

Mr.  Dnamnomd, — ^Why  did  he  apply  the  ex- 
pression to  such  allegiance?  What  did  he 
say  ? — If  1  remember  right,  it  was,  **  if  he 
tamed  a  deaf  ear  to  the  voice  of  his  people." 

Did  he  say  any  thing  about  petitioning  ?-~ 
Yes,  he  winied  ^e  people  to  petition  their 
august  sovereign. 

What  more  do  you  say  of  this  speech  ? — I  do 
not  remember  more. 

Lord  Ilermaad.^He  has  ^plained  enough  I 
think. 

Mr.  J>iiiiffiioni.—Do  yen  remember  any 
other  part  of  his  speech  ? — No. 

Did  he  use  any  words  to  shew  what  his 
meaning  was  when  he  spoke  of  the  voice  of 
the  people  ? — Not  that  I  remember  of. 

Lord  ^lAK)c«te.— You  said  he  wished  the 
people  to  address  their  august  sovermgn ;  and 
then  you  stated  he  said,  **  if  he  turned  a  deaf 
I  ear  to  the  voice  of  his  people."  Did  he  add 
anything? — I  do  not  remember  wheUier  he 
added  any  thing  or  not. 

After  he  used  the  words,  ^  if  he  turned  a 
deaf  ear  to  the  voice  of  his  people,"  did  he  say 
any  thing  or  not  about  "  to  hell  with  such  aU 
legianoe  ?** — ^That  came  afterwards. 

Lord  Hermamd. — Did  he  mention  in  what 
way  the  voice  of  the  people  was  to  be  express* 
ed  ? — ^No,  he  wished  the  people  to  petition. 

Lord  Advocate, — Did  you,  after  this  meetings 
see  a  publication  called  **  Account  of  the  Pro- 
ceedings of  the  Public  Meeting  of  Uie  buf> 
yeiees  and  inhabitaatt  of  the  town  of  Kil^ar- 


95] 


aid  Tkomoi  Baud  fir 


h,  D.  )«}T. 


b» 


nock,  bftld  on  Ihe  7th  December  iat6» .  for  the 
purpose  of  deliberating  on  the  most  proper 
method  of  remedjing  the  present  distresses  of 
^e  conntTj,  with  a  fnll  report  of  the  speeches 
oa  that  oeeasion"?— I  never  saw  it»  except 
•Be  day  Ijisgon  the  tdble  before  the  sheriff. 

WUHkm  Menit  GT0s»-examined  by  Mr.  Grcmt, 

Do  yoa  know  wbat  was  the  purpose  of  the 
meeting  ?— It  was  fot  tbt  purpose  of  petitioning 
the  aoTeieign. 

Do  you  know,  if  in  point  of  fact,  petiliona 
were  drawn  up  and  signed  by  the  persons  who 
were  at  the  meeting  ?~I  coiiLd  not  say. 

Did  yon  sign  any  of  the  petitions  younelf ! 
—No. 

Did  yon  ondeistand  from  what  passed^  thai 
it  was  tiie  intention  of  McLaren  to  induce  the 
people,  and  you  as  one  of  then],  to  petition  the 
legislatnre,  or  to  excite  violence  and  disturb* 


lard  AdooeaU. — ^I  object  to  this  queelioik 

Idtrd  Jutike  GMc— The  UBderstanding  or 
c^nion  of  any  witness  is  not  to  be  lutened  to 
in  evidence. 

Mr.  GtmI.— What  did  vmi  ooB«Bt  tohe  the 
object  of  M^Laiea'tspeenl 

luriAdoocaU. — ^If  this  course  of  examina- 
tion go  on,  there  can  be  no  objectiopr  to  my 
reexamining  the  witness.  I  did  not  finish  my 
examinatioD  of  him,  but  on  the  idea  that  I 
could  not  put  such  questions. 

Mr.  Cferifc.-^We  hare  put  a  question,  and 
we  should  not  be  interrupted.  'ih»  lord  advo- 
cate puts  in  his  claim  to  put  such  questions.  But 
he  must  not  interrupt  us  in  older  to  make  an 
examination  himself. 

€010*^— He  has  no  such  intention. 

Mr.  QtmUj-^l  put  this  other  question :  In 
point  of  bet,  did  this  speech  excite  tike  people 
to  commotion  or  dietaminee  ? — ^No. 

Then  was  none  upon  that  occasion  f — 
Hone. 

Was  it  the  tendency  of.MliKien's  speech, 
from  what  yon  observed,  and  from  what  passed, 
to  create  eommotion  or  disturbance^  or  to  in- 
doce  petitions  to  be  sent  to  the  Prinoe  Regent 
nnd  the  two  houses  of  parHament  ?— -It  wai  to 
indnoe  the  people  to  petition  the  Prince  Regent 
and  the  two  houses  of  partiaraent. 

Did  he  oxptesB  himself  in  any  way  with  re- 
gard to  the  person  of  the  Prince  Regent  in 
tfant  speech  ?--Not  that  I  remember  of. 

When  he  advised  diem  to  lay  their  petitions 
at  the  foot  of  the  throne,  did  he  say  anv  thing 
uCttie  angnst  prineef-*I  do  not  remember  anv 
thing  of  the  throne;  but  he  mentioned  hn 
aogost  mhicc 

hk  what  terms  t-^In  ihvourable  terms. 

In  terms  perfectly  legal  and  becoming  a  good 
snhjectT^Yes. 

Euffk  O-m^ord  swoTn.-^£xamiDed  by 
Mr.  SoUdtor  Generai, 

Are  you  a  printer  ai  Kilmarnock  ?-^Yes» 


I  De  yoq  remember  a  meeting  hdd  in  De- 
cember last  in  tbcneighbeuihoQdof  thattewn) 
—Yes. 

Was  a  MS.  aceount  of  the  pfoeeediags  at 
that  meeting  afterwards  beought  lo  yott  t»  btf 
printed?— Part  of  iu 

Did  you  attend  the  meeting  ? — Ko« 

Look  at  that  ? 

[Pamphlet  handed  to  the  witness.] 

That  was  printed  in  my  office. 

Who  brought  it?— The  part  I  saw  was 
brought  by  David  Andrew,  I  think. 

Was  any  body  in  company  with  him?— I 
think  not. 

Courf .— Has  Andrew  any  more  names  than 
oa«?«-l  do  not  know. 

Mr.  SoUcU&r  Generai, — Did  you  see  him  in 
the  other  room  to-day  ? — I  did. 

Who  attended  the  press  while  this  MS.  wat 
printed  ? — I  did  not  see,  as  the  printing-office 
IS  at  a  distance  from  die  shop,  and  1  was  only 
occasionally  there. 

Did  Thomas  Baird  attend  the  printing? — I 
think  I  saw  him  once  or  twice ;  I  am  certain 
once. 

Are  you  able  to  say  whether  this  publication 
is  a  true  copy  of  the  mS.  that  was  Drought  to 


you  ? — I  cannot  say. 
"^     ^  it?—' 

whom  I  employ. 


Who  printed  it  f— Thomas  Murray,  a  man 


Haye  you  been  paid  for  the  printing  ? — No. 

Who  is  to  pay  you  ? — ^The  persons  who  em* 
ployed  me. 

who  are  thev  ? — ^I  look  to  Mr.  David  Ai^ 
drew,  Mr.  Andrew  Finnic,  and  Mr.  Baird. 

Lord.  Ad9oeate. — What  was  done  with  the 
publication  after  the  printing? — Cqpies  were 
taken  ftom  me  in  quantities :  Mr.  baifd  got 
a  qoaatity,  aad  Mr.  Finnie  and  others  got 
quantities. 

Mr.  jSsficitor  Gfeneri/.^-How  '  ttnoy  co|nes 
were  printed  ?— About  400 1  think. 

How  many  did  Baifd  get  ? — ^I  cannol  My. 

Can  yott  say  abauft  what  nnmbarP— iWa 
might  be  four,  five,  or  atx  doien. 

Lord  Jdvocate, — Do  you  know  M'Laren  ?-* 
Within  this  short  time. 
Did  he  ever  complain  of  his  speech  being 

Erinted  inaccurately  ? — No,  J  never  i|>oke  to 
im  in  my  life,  to  my  knowledge. 

Thomoi  Murrmf  sworn,— ^Eimmiaed  by 

Are  you  journeyman  to  Mr.  Cmidbrd  ? — Mr* 
Crawford  is  my  emplojer. 

[The  pamphlet  vras  shown  to  the  witness.] 

Was  that  printed  at  Mr.  Crawford's  printing 
office  ? — Yes. 

By  you  ?— Yes. 

Is  it  a  correct  copy  of  the  MS.  giren  yon  for 
the  pnipoae  of  being  printAd  ?^TI»ra  ware 
some  alterations  in  the  proofs. 

Corrections  of  the.  press  ?— Yes. 


«7] 


57  GfiORGB  m. 


2Vm/  ofMuuMitr  M'Laren 


(a,s 


What  altenUions ?«-Typographical  errors: 
and  peiiiaps  in  bodm  sentenoes  grunmatical 
alterations. 

Were  there  any  alterations  of  the  sense  P — 
None  that  I  remember  of. 

Who  gave  in  the  MS.  ?— The  first  part  I  re- 
ceived fi^m  Mr.  Crawford. 

Who  gave  you  the  rest  ? — I  received  it  at 
different  times. 

From  whom? — ^It  was  sometimes  given  in 
when  I  was  not  in  the  oflice,  and  sometimes 
when  I  was  in  it. 

Who  gave  you  any  part  of  it? — Mr.  David 
Andrew. 

Did  Mr.  Webster  bring  any  of  it? — Once,  I 
leoMmber* 

^    Who  came  to  superintend  the  printing,  and 
to  inquire  after  it?— That  person. 

Any  body  else  f — No. 

Mr.  Baiid  ? — ^He  was  twice  or  three  times  at 
the  utmost. 

For  the  purpose  of  inquiring  about  the  pub- 
tication? — He  was  several  times  in  the  office. ' 

What  did  he  do  when  he  came  ? — ^He  came 
to  the  office  along  with  Mr.  David  Andrew  to 
look  over  the  first  proof. 

Did  they  make  any  alterations  ? — One  was 
proposed  1^  Mr.  BainL 

What  was  it  ? — ^I  do  not  know. 

Can  you  point  it  out  in  the  publication  f^—^ 
No,  for  I  never  had  it  in  my  hand  but  now  and 
before  the  sheriff  of  Ayr. 

Was  any  alteration  made  in  consequence  ? — 
None. 

Why  was  it  not  made  ? — ^It  was  a  grammati- 
cA  alteration  that  was  proposed,  I  thought  the 
alteration  proposed  was  wrong,  and  I  had  a 
right  to  make  the  pamphlet  giammatical. 

What  became  of  the  MS.  from  ^ich  the 
imbUcation  was  printed? — It  went  as  all  of 
them  do,  it  was  destroyed ;  I  was  not  desired 
to  preserve  it. 

Lord  ilANioale.— Look  at  the  passage  on 
page  r. "  to  —  with  allegiance,''  was  that 
Dlank  in  the  MS.  ? — If  I  remember  rightly, 
that  part  mt  the  MS.  was  erased,  written  over 
again,  then  erased  and  interiin^;  and  I  do 
not  know  but  I  ordered  my  apprentice  to 
leave  the  blank,  as  I  oonld  not  make  it  out 
To  make  the  sentence  join  properly,  I  left  it 
blank* 

Did  Mr,  Baird,  when  he  came  and  looked 
over  the  MS.,  object  to  the  blank,  or  state  any 
thing? — He  never  looked  over  it. 

You  said  Mr.  Baird  came  with  Mr.  Andrew 
and  looked  over  the  first  proof.  Did  he  mdce 
any  observation  about  the  blank  thete  left? — 
That  was  not  in  the  first  proof;  the  proof  I 
spdce  of  was  the  proof  of  the  first  pages  of  the 
pamphlet* 

I%oma»  Mmrmf  cross-examined  by  Mr.  Jeffrey 
tor  Thomas  Baird. 

-  Weietheproof  sheets  tent  to  any  one  to  be 
revised  ?— They  were. 
To  whom?— To  Mr.  David  Andrew. 


Any  to  Mr. 
brance. 


f — ^Never,  to  my  remem- 


fPart  of  the  MS.  was  shown  to  the  witness.] 

Mr.  Drummond, — ^Did  you  ever  see  that  be- 
fore ?— I  never  saw  it  befi>re ;  it  never  came 
into  my  hands. 

Thonm  Myrr^  cross-examined  by  Mr.  Greitf 
for  Alexander  M^'Laren. 

Was  any  part  of  the  MS.  pencilled  ?— I  do 
not  remember ;  the  MS.  was  very  imperfect, 
and  was  partly  well  and  partly  ill  written ;  it 
was  partly  in  quarto  and  partly  in  folio,  in  dif- 
ferent bands. 

Do  you  remember  the  part  that  contains  the 
blank,  what  size  of  the  paper  was  there  ? — It 
was  folio.  I  remember  it  quKe  well.  There 
were  two  sheets  of  foolscap  paper  written  on 
without  being  folded. 

Was  it  of  die  size  of  this,  folded  and  written 
on  as  this  f — 

[A  sheet  of  folio  paper  shown  the  witness.] 

Yes. 


JeMci  MmUme  sworn. — Fjcamined  by 
Mr.  SoUcUor  General. 

Do  you  remember  a  public  meeting  at  Dean 
park,  near  Kilmarnock  r — ^Yes. 

Do  you  know  that  there  was  a  committee  to 
prepare  and  adjust  the  business  of  that  meet- 
ing ? — I  do. 

Of  whom  did  it  consist? — I  really  cannot 
tell ;  of  a  number  of  persons ;  of  myself  for 
one.  . 

Was  Mr.  M'Laren  one  ? — ^Yes. 

Mr.  Baird?— Yes. 

Were  any  resolutions  prepared  before  the 
public  meeting  ? — Yes. 

Were  they  read  to  the  meeting  which  took 
place  ? — Yes. 

You  attended  that  meeting  ? — I  did. 

Who  first  spoke  ? — ^Alexander  M*Laren. 

Was  there  any  meeting  of  this  committee 
after  that  public  meeting  ?--<Yes,  that  efen- 
ing. 

For  what  purpose  ? — The  particular  purpose 
was,  to  consider  whether  they  should  pnnt  their 
resolutions  and  speeches. 

Who  attended  that  meeting  P  VTere  the 
panels  there  P — I  think  so. 

Was  it  resolved  there  to  print  the  speeches 
and  resolutions  ? — Yes. 

The  several  speakers  gave  in  copies  of  their 
speeches  P — I  believe  so,  but  I  did  not  see  them 
given  in. 

Did  you  see  any  thing  at  all  giren  in  ? — ^No- 
thinff  but  my  own  speech. 

Were  you  present  when  the  prooft  of  the 
proceedings  were  revised  t— I  was  not  present 
at  the  revision  of  any  of  them. 

[The  pamphlet  was  shown  to  the  witness.] 

Is  that  the  publication  of  the  proceedings 
which  took  place  at  Dean-park  at  the  time  yon 
mention  ? — 1  suppose  so. 


it9l 


mad  Tlumu  B&hri/or  StUtbm. 


-A.  D.  I8I7. 


C30 


By  ^vbom  does  it  appear  to  be  printed? —  t 
By  Hugh  CraiHM.  ! 

Was  it  resolved' at  the  oommittee  that  he 
sbcnild  be  the  printer  f — ^Not  particularly. 

Do  yoa  know  the  MSS.  were  sent  to  h'im  ? — 
I  do  not  know. 

Did  yott  never  read  the  pamphlet?— No. 

Not  even  yoor  own  speech? — No;  I  gave  it 
to  Mr.  Walter  Andrew  v>  revise.  i 

Are  these  the  resolutions  that  were  read  to 
the  meeting } — I  have  glanced  at  them.  I  can- 
not say  particnlarly  they  are  the  resolotions, 
but  generally  I  believe  so. 

Lord  AdoocaU. — ^You  are  acquainted  with 
McLaren  ?— Yes. 

He  was  a  member  of  the  committee? — 
Yes. 

YoQ  have,  of  coarse,  had  conversations  with 
him  about  the  meeting  and  the  publication  ? — 
Yes»  in  a  general  way. 

Did  yon  ever  hear  if  Baird  or  he  complained 
of  inaccBiacy  in  the  statement  given  of  the 
proceedings  ? — ^Yes ;  Alexander  M'Laren. 

What  did  he  say? — That  one  sentence  at  the 
end  of  his  speech  in  the  printed  account,  and 
cited  in  the  indictment  was  not  in  the  original 
M3«  He  said  it  runs  in  this  way :  speaking  of 
the  petition  being  presented  to  tne  Prince  Re- 
gent, ''he  hoped  he  would  lend  his  gracious  ear 
to  it,  as  he  was  bound  to  do  by  the  constitu- 
tion ;  but  if  he  did  not  do  so,  then  to  hell  with 
allegiance.^  I  think  he  said  this  was  not  in 
the  original  speech. 

Did  yon  hear  his  speech  ? — Only  the  sound 
of  it. 

Did  you  hear  any  of  the  words  of  it  daring 
the  meeting  ? — I  cannot  say  I  did. 

What  did  M'Laren  say  was  the  inaccuracy  P 
— He  complained  of  the  latter  part  of  the  sen* 
fence  altogether  being  in  it  at  all,  because  it 
was  not  in  the  MS. 

Did  be  complain  of  the  word  ^  hell  T 

Mr.  CierL^l  object  to  the  question.  There 
is  DO  such  word  in  the  publication. 

[Ibe  witness  was  ordered  to  withdraw.] 

Xord  .ideooafe.— The  drift  of  the  eiamina- 
tion  I  vras  carrying  on  at  the  time  was,  to 
bring  out  of  the  witness  what  was  the  conver- 
sation between  him  and  McLaren — whether 
McLaren  objected  to  certain  parts  of  the  pub- 
Ucation  which  he  is  alleged  to  have  done.  The 
witness  said  he  never  read  that  publication.  I 
am  entitled  to  put  the  question,  in  order  to 
ascertain  the  witness's  recollection ;  and  par- 
.ticulariy,  whether  M'Laien  complained  of  any 
word  bein^  in  the  MS.  I  submit  that  the  ques- 
tion I  put  IS  competent,  viz.  whether  M'Laren 
complained  of  *'  hell  to  allegiance^'  being  in 
the  MS.  The  thing,  I  admit,  is  now  irreme- 
diable, because  my  learned  friend  has  instruct- 
ed the  witness  by  stating  that  there  is  no  such 
word  in  Ac  publication ;  Vat  I  say  it  was  ir- 
regnlar  in  my  learned  friend  to  intormpt  me 
and  thus  to  prepare  the  witness. 


Mr.  CterL— Nobody  is  more  oompetent  to 

{mt  regular  questions  to  witnesses  than  my 
ord  advocate,  but  I  cannot  permit  him  to 
proceed  irregularly.  What  was  the  question 
put?  Whether  McLaren  complained  of  hell 
being  in  therMS.  That  was  implying  that 
the  words  were  in  the  printed  pam|)hlet,  and 
nobody  is  entitled  to  suggest  a  fidse  fiict  to  a 
witness.  No  fact  must  b^  assumed  in  putting 
a  question  to  a  witness. 

Lord  Advocate, — ^I  wish  the  Court  to  keep  in 
recollection  what  the  question  was  to  whidi  I 
wished  to  get  an  answer — whether  or  n# 
M'Laren  complained  of  being  misrepresented 
b^  '*  heir  being  in  the  printed  copy.  My 
friend  now  admits  that  the  question  was  not 
irregular. 

Mr.  Clerk. — ^The  question  is  not  as  it  was 

put  originally. 

Lord  Advocate. — ^I  put  it  to  the  Court  that 
such  was  the  question. 


Lord  Jmtke  Gerk,-^!  do  not  see  any  thiofp 
out  of  form  here. 

Lord  Adoocatej^^Tbe  opposite  counsel  were 
out  of  form  in  interrupting  me,  and  they  have 
rendered  the  question  useless.  If  they  again 
interrupt  me,  let  them  first  desire  the  witness 
to  be  removed. 

[Witness  brought  back.] 

In«whatvray  did  he  say  he  was  misrepresent-* 
ed  ? — ^I  did  not  say  so.  I  say  he  complained 
of  the  latter  part  of  the  sentence  being  ^put  in, 
because  it  was  not  in  the  MS. 

Then  he  did  not  complain  of  being  misrfr^ 
presented? — Yes,  in  one  word  that  he  did  no^ 
pronounce  the  word  **  their,"  or  **  our,"wfai^ 
comes  in  before  *'  allegiance.'' 

You  are  looking  at  the  printed  statement 
Did  vou  not  say  that  you  had  not  seen  it  be- 
fore f— I  did  not  say  I  had  not  seen  it;  I  said 
I  had  not  read  it. 

Lard  JuUke  Clerk, — He  says  M'Laren  com- 
plained of  being  misrepresented  with  respect 
to  a  word  before  ^  allegianee/'  and  he  is  en- 
titled to  look  at  the  pamphlet. 

WHnen. — As  ftr  as  my  judgment  leads  me 
to  take  notice,  he  complained  of  any  thing  w 
tervening  between  the  word  ^  to"  and  "  alle- 

S'ance,"  because  it  was  not  in  his  original  MS. 
e  never  intended  to  say  it;  it  was  merely  a 
word  of  some  Play  that  oconrred  to  his  memory, 
and  he  let  it  out. 

Mr.  Solicitor  G^teraL—jyid  he  tell  yon, 
then,  how  the  passage  should  have  been 
printed  ? — He  told  me  the  identical  words  he 
used.  The  last  words  of  the  sentence  were, 
^  to  hell  allegiance." 

Lord  Advocate. — ^Did  he  complain  of  the 
passage  as  stated  in  the  indietneat  ?— Yes ;  he 
gave  the  indictment  to  me  to  read. 

Lord  Jmtkc  Oerfc.— He   said   tlie  passage 


Ml 


57  GEOltGl  m. 


Trial -qfAlttMnider  M'Larmt 


tss 


was  not  toiTCcdy  giv^  ekher  in  tke  indielfDeot 
or  the  priDt«d  account  t — Exactly. 

Lord  AdoQcote.^^}htw  long  is  it  since  be 
«ade  this  complaint  to  yon  ? — I  think  the  very 
day  he  received  the  indictment. 

Jama  JMiutoM'tevoss-^xamned  by  Mr.  Jeffrey 
for  Thomas  Baird. 

Yoi^  mentioned  that  both  of  the  paneb  were 
members  of  the  committee  with  you.  Was 
JUr.  Baird  at  the  pnUic  meeting  f — ^Yes. 

Did  yen  then*  or  al  any  •ther  time,  hear  him 
make  any  ffemacks  upon  McLaren's  speech  ?— > 
No,- 

Did  y«tt  ttot  hear  him  at  any  odier  time 
.loake  any  revtfks  7— Yes,  I  have  heard  him 
several  times  complain,  and  say  it  was  a  pity 
the  last  sentence  had  been  put  in. 

Spoken,  ot  put  in  ? — It  was  a  pity  it  had 
been  spoken  at  all. 

Were  yon  present  at  the  meeiiag  about  the 
printing  ? — Yes. 

Was  any  objection  made  to  that  passage  ? — 
*!  was'agamst  the  printing  altogether^  not  that 


with  belter  timas.    What  were  then  the 
neral  wages  ? — Abont  12«.  a  week,  from  12«.  t# 
Us. 

I  ne^  not  therefore  aak  if  there  was  th# 
greatest  possible  distress  at  Kitmamock  f -^ 
There  can  be  no  doubt  of  it. 

Yon  talked  of  the  meeting  which  was  held 
near  Kilmarnock.  What  was  its  object  f  — 
Solely  to  petition  the  Prince  Regeift,  and  boA 
Houses  of  Parliament,  to  consider  the  grievances 
of  the  country.  It  was  enr  opinion,  that  one 
irrest  reason  of  them  was  the  defective  state  of 
the  representation,  more  particularly  in  our 
part  or  the  country ;  and  therefore  we  partictk- 
farly  recommended  attention  to  that. 

Were  any  other  objects  in  view  besides  pe- 
titioning, any  other  means  thought  of  in  order 
to  obtain  redress  of  these  grievances  ? — ^None. 

Was  any  conversation  ever  held  in  youy 
presence  by  M^I^ren  that  tended  to  any 
other  purpose  than  what  is  in  the  petition  ? — 
None. 

Did  you  ever  hear  from  him  any  hint,  that 
induced  you  to  believe  he  entertained  disloyal 


I  thought  there  was  any  thibg  wrong  in  the  |  opinions,  or  seditious  intentions  ? — Never 


^ttblicatAOB ;  but  judging  Ifrom  my  own,  I  sup-  { 
|M)sed  aA-  the  speeches  weoe  made  up  in  a  hun- 
ffied  way,  and  wooU  not  stand  the  scmtiny  of , 
4ihe  public  eye. 

Do  you  remember  Mr.  Baird  making  any 
objections  to  the  publication  ?— -I  do  not  par- 
ticularly. 

.  -  Do  yon  know  any  thmg  of  ilie  reasons  stated 
far  ot  agttnst  the  psinting  ?«^The  pnblication 
w&s  le  defeay  the  eipenses  inenntd  at  €xe 
public  meeting. 

■  Was  the  sale  of  the  ^blkation  intnsted  to 
any  ^riiaolar  pefS4»sf«-3k>  she  eommiMee  in 
foserflil. 

[The  MS.  of  the  witness's  speech  was  shown 

to  him.] 

Was  that  written  More  or  after  the  maei- 
ing  t — Before. 
You  ofl^iated  as  chairman  at  the  meeting  ? 

—Yes. 

•Jenflf  Mmione  ei088««xsnrined  l>y  Mt.  ihwM 
for  Alexander  McLaren. 

You  are  a  muslin  agent  ? — ^Yes. 

For  any  of  the  Glasgow  houses  i — Yes. 

From  that  oivcunstaooe,  have  you  an  op- 
portunity of  .being  much  acquainted  with  the 
situation  of  the  manufacturers  in  Kilmaroook  ? 
,— I  think  so. 

At  present  now,  what  may  the  most  active 
weaver  be  able  to  clear  in  the  course  of  a 
week?— At  present  things  are  ratheir  better 
than  they  were  some  time  ago.  From  a  cal- 
-  culation  I  hare  made,  an  active  weaver  may 
^t  present  gain  about  5t.  6d.  a  week. 

What  might  he  be  able  to  gain  a  week  on  an 
•nei^ge  of  Uie  last  year? — From  4s.  to  4s,  6J. 

Hsrw  many  hours  work  a  day  was  necessary 
to  gain  this.  snm?-^At  least^  fioia  14  -to  1$ 
hours. 

You  hare  compared  this  period  of  dbtress 


Have  you  occasion  to  know  whether  lie  was 
of  a  peaceable  and  orderly  disposition  and 
habit  of  life  ? — I  never  heard  or  saw  any  thing 
to  the  contrary.         '^ 

How  long  have  you  been  acquainted  witii 
him  ? — ^These  eight  years. 

Does  it  consist  with  your  knowledge  thathd 
was  a  member  of  a  volunteer  corps  at  ulasgowt 
^I  have  heard  that  he  was. 

Do  you  know  of  his  being  in  the  local  mi- 
litia, or  Kilmarnock  volunteer  corps  ? — lie  was 
in  the  rifle  corps  at  Kilmarnock.  ^ 

'  Was  the  public  meeting  conducted  in  aik 
orderly  and  peaceable  manner  ? — I  considered 
it  so.  It  was  with  no  other  intention  I  underr 
took  the  management,  and  that  any  gentleman 
will  see  from  my  speech. 

What  was  the  state  of  fhe  weather? — It 
was  Tery  coarse.  There  was  hail^.and  wind, 
and  snow. 

Perhaps  that  was  the  reason  you  did  not 
hear  the  speech  ?^TbBt  was  the  reason  ;  I  just 
heard  the  sound,  but  not  the  words. 

It  was  not  vreatber  well  calculated  fbr  -^y 
person  hearing  a  speed)  distinctly  ?*>->It  vnd 
very  bad  indeed. 

Yon  said  you  wert  present  at  a  meeting  of 
the  committee,  when  it  was  proposed  to  print 
die  proceedings,  and  that  M'Laren  was  there, 
and  that  you  objected  to  the  printing.  Did 
any  other  peraon  object? — Mr.  M'Lsu«n  ob- 
jected particularly  to  the  printing  of  his 
speech. 

What  passed  upon  that  occasion? — ^There 
was  a  great  deal  of  altercation  as  to  the  print* 
ing  ;  and  it  was  at  last  agreed  that  those  who 
had  made  speeches  should  give  them  to  a 
committee  appointed  to  superintend  the  print- 
ing. 

Did  Mr.  McLaren  still  object  to  his  speech' 
being. printed  f — He  said,  though  the  restweilv 
printed,  he  did  not  see  any  reason  for  printin|f 


amd  nomoi  BaMJbr  SmUe^. 


asf\ 

and  that  be  bad  no  mteation  tkat  monitng  of 
•pcaktDgitaiL 

Were  jon  present  at  any  meeting  of  the  com- 
mittee prerjons  to  the  pnblic  meeting,  for  ar- 
lansiog  about  the  public  meeting  ??— Yes,  I  was 
•t  them  ail,  I  think. 

At  a  previous  meeting  were  any  steps  taken 
as  to  appoiatiBg  a  person  to  open  the  pro- 
oeedingsat  the  pubtic  meetiDg?— -It  was  dis- 
cussed ;  and  after  a  great  deal  of  discussioB, 
M.*Jju2m  agreed,  thai  if  no  other  person  came 
forward,  he  wonld  do  it ;  and  he  raenfeioned  to 
ae  since  the  meeting,  he  had  no  idea  he  should 
open  the  business,  as  another  person  had  given 
a  kind  of  promise  to  do  it,  ana  that  person  not 
appearing  on  the  field,  he  went  to  a  public- 
house  uid  prepared  some  ebsenrations.  I  saw 
him  the  ai^  befofet  he  raeelingi,  when  be 
tohl  me  he  had  hopes  another  person  would 
openiL 

Do  yon  know  who  that  other  penon  was  ? — 
Tes,  M'l^ren  told  me. 

Was  the  name  of  that  other  peiwm  publicly 
mentioned  ? — No,  it  was  not. 

Was  either  of  ypu  a  member  of  the  com- 
mittee that  superintended  the  printiag? — ^None 
of  us. 

Do  yon  know  anything  o^  a  distonbanoe  that 
iDoJc  place  about  meal  previoos  to  the  meeting  ? 
— I  heard  of  it. 

Were  yon  atKilmamoek  atthe  time  7— I  was 
about  two  shops  from  it  at  the  time.  I  did  not 
eoQSider  it  a  mob  or  distnrbanee. 

Have  you  occasion  to  know  how  MlaiPen 
condneted  himsidf  upon  that  oooisionf— No,  I 
faav<enot. 

You  said  you  hare  known  him  eight  yean* 
Did  ynu  erar  know  him  to  be  oolinected  with 
any  body  of  men  assembled  for  any  seditious 
or  illegal  purpose  f— Never,  so  ^  as  I  knew 
him,  otherwise  I  would  never  have  kept  com- 
paa^  with  him. 

You  ar^  an  extensive  agent?— Itleri  are  some 
much  more  extensive  than  I  am. 

Have  yoa  ever  heard  MfLareh  wet  a  member 
of  any  society  for  any  purpose  t"<-Of  none  )»% 
^'  ittea. 


A.  D.  1817. 


[34 


Cswf  .^Does  this  comnuttea  stiU  contimie  i 
— Hoy  the  committee  does  not  continue. 

Mr.  GntAt^'WwB  tfaia  committee  open  for 
an^  person  to  go  to  ?— We  never  had  a  meeting 
imA  wat  noc  op«B ;  and  there  were  always 
Sana  ocben  present  besides  the  members  of 
the  committee.    Any  one  was  asked  to  attend. 

Wase  a»y  pieeaaiions  taken  to  Iceep  your 
mceeding^  secret  firom  tha  magistnoes  f— 
None. 

Was  it  emir  hiaftad  or  proposed  that  it  would 
be  twcasaaiy  to  keoD  the  psooaedangs  seotat 
finnn  the  magistrates  r — ^Never. 

la  point  of  lao't,  were  the  raagisttales  made 
M^iatad  with  the  intention  of  the  meeting  > 
—I  believe  so.  I  «aUed  and  told  Mr.  fiaird  I 
«ohll  not 'attend  unless  the  magisttates  were 
nade  acquainted  with  the  intended  meeting< 

V0L.1XXIII. 


Be  was  anpomt^  ^o  tell  th«m.  Mr.  Ba!« 
said  he  had  criled  on  the  magistrate^  but  had 
not  found  him,  and  he  said  be  would  go  agaiti, 
and  I  understood  from  him  he  did  go  again. 

Was  there,  according  to  your  knowledge, 
any  obstfuction  offere4  by  the  magistrates  tb 
the  meeting?— I  saw  nbtle. 

Do  you  kno^r  whether,  in  point  of  fact,  pe- 
titions, founded  on  the  resolutions  adopted  a:t 
that  meeting  were  prepared  to  the  Prince 
Regent  and  the  two  Houses  of  Parliament  ?-^ 
They  were. 

Did  you  read  them  over?— I  think  nearly. 
I  heard  diem  all  read. 

Does  it  consist  with  your  knowledge  that 
they  were  forwarded  ?— I  was  toW  so  by  Mr. 
Baird.  I  read  in  the  public  papers  that  they 
werepresented. 

If  1  were  to  show  you  a  printed  copy  of  the  • 
petition,  should  you  remember  it  f 

Lord  Advocate, — Nothing  iasaid  in  the  in- 
dictment >about  the  petition., 

Mr.  CMr^Mach  will  be  said  in  defence 
upon  this  veiy  fact  about  which  we  are 
examining  the  witness. 

Lord  Adooeate, — ^Defences  have  been  given 
in  for  the  panels,  and  no  notice  is  taken  in 
them  of  productions  being  to  be  made.  Your 
lordships  will  take  notice  of  this.  I  only  wish 
you  may  keep  this  in  view. 

LordJugUee  Clerk. — We  must  receive  what- 
ever may  go  to  exculpate  the  panels. 

[The  account  of  the  petition  in  a  printed  copy 
of  the  Journals  of  the  House  of  Commons 

was  handed  to  the  witness.] 

« 

Mr.  Gran/.*-* Were  these  the  terms  of  the 
petition  7 — ^As  far  as  my  judgment  serves  ma» 
that  is  the  substance  of  the  petition. 

Have  jrouany  doubts  whether  this  is  the 
slme  petition? — I  have  none  at  all.  Nona 
can  suppose  my  memory  is  such  as  to  say  these 
are  the  identical  words. 

Your  answer  is  quite  proper.  I  have  put  a 
cross  at  the  margin.  Say  whether  you  recollect 
particularly  that  the  words  there  form  part  of 
the  petition  ? 

lord  iMNKote.-—!  consented  toa  fawqoes- 
tions  being  pvt  to  the  witness,  hot  I  now  ob- 
ject to  any  farther  questions  that  are  not  cross. 

Mr.  Grant, — ^I  am  just  finishing  this  part  of 
the  examination.  I  have  only  to  read  a  pas- 
sage, and  ask  the  witness  whether  he  remem- 
bers it.  ''  When  we  came  to  discover  those 
alarming  facts,  our  hearts  stood  appalled,  as  if 
we  had  trod  on  a  volcano :  We  looked  around 
for  the -cause,  and  we  found  it  in  the  very 
corrupt  and  defective  representation  of  the 
people  in  parliament.  We  found,  that  the 
Commons  House,  whose  members  ought  to  bcL 
chosen  annually  by  the  peopfe — should  be  the 
organ  of  the  people^s  voice — ^the  guardians  of 
their  rights  and  of  -  the  public'purse — had  lost 
all  control  over  the  sarvants  oC  the  Crown,  atid 

D 


35]        57  GEORGE  in. 


Trial  qfJlkxander  McLaren 


[39 


had  become  aubserrieoi  to  the  will  of  the 
minister  of  the  day :  That  the  great  body  of 
the  people  are  excluded  from  their  elective 
fraochise — that  a  majority  of  your  honomrable 
House  are  returned  to  parliament  by  proprietors 
of  rotten  boroughs^jlhe  influence  of  the  Treasury 
and  a  few  other  indiYiduals;  and  that  seats 
therein  are  bought  and  sold  like  tickets  for  the 
Opera." 

Were  these  the  words  in  the  petition  ? — I 
think  these  identical  words  were  in  the  petition 
which  was  forwarded  to  parliament,  and  or- 
dered to  lie  on  the  table,  I  believe. 

You  remember  being  shewn  this  printed 
publication.  You  said  M'Laren  complained 
of  the  latter  part  of  his  speech  being  inserted 
because  it  was  not  in  the  manuscript  ? — ^Yes,  I 
did. 

Say  what  part  was  not  in  the  manuscript? — 
I  cannot  say  what  were  the  words  he  spoke  at 
the  meeting.  What  he  said  to  me  was,  that  he 
concluded  with  a  line  of  a  play,  and  it  was  **  to 
hell  allegiance/' 

Mr.'  CA^Ae.-^Did  he  say  that  any  part  of  the 
passage  before  that  was  not  In  his  manuscript  ? 
— He  just  said  the  latter  part  of  the  sentence  was 
not  in.  the  manuscript. 

You  said  you  haa  a  conTersation  with  him 
when  he  shewed  his  indictment,  and  that  he 
complained  as  you  have  stated.  Had  you  any 
other  conversation  with  him  on  the  subject 
than  on  that  occasion  ? — Perhaps  there  might 
be  two  or  three,  but  to  the  same  purpose. 

Did  he  attempt  to  influence  you  as  to  what 
evidence  you  should  give  at  this  trial? — ^Neither 
of  us  considered  I  should  be  called  on  to  give 
evidence.  I  did  not  know  what  he  had  spoken, 
nor  about  the  selling  of  the  pamphlets. 

Lord  Advocate, — We  have  had  a  very  elo- 
quent petition  read.  By  whom  was  it  com- 
posed f — I  do  not  know. 

Did  any  member  of  the  committee  compose 
it? — The  committee  for  superintending  the 
printing  were  appointed  to  compose  it,  namely, 
Thomas  Baird,  W.  Finnic,  W.  Andrew, 
D.  Andrew,  and  W.  Webster. 

They  produced  it  to  you  as  their  own  com- 
position r— It  was  produced  and  read  at  the 
meeting. 

Did  they  say  anything  that  led  you  to  suppose 
that  it  was  not  their  own  composition  P — I  do 
not  think  they  did.  • 

Did  they  not  say  from  whom  they  got  it  7— 
They  did  not.  There  was  some  amendment 
made  upon  it. 

Upon  vour  oath  can  you  state  that  none  of 
them  said  to  you  anything  about  the  getting 
of  the  petition  f  ~I  heard  nothing  of  it. 

Did  any  member  of  the  committee  give  you 
to  understand  they  had  not  drawn  up  that  pe- 
tition, but  sot  it  (^m  another  quarter? — It 
would  be  ridiculous  for  a  man  to  speak  posi- 
tively  to  a  thing  he  does  not  recollect  of. 

Hugh  Wibqn  sworn.— Examiued  by 
.  Mfk  Jjnttfff^ond, 

Were  you  at  a  public  meeting  in  Dean-park, 


about  the  beginning  of  Detember  P — ^I  believe 
it  might  be  about  Uiat  time. 

Who  was  the  preses  of  the  meeting  ? — James 
Johnston. 

Who  made  the  first  speech? — ^Akxaader 
M.'Laren. 

Did  you^read  an  account  of  the  raeech  ?-?> 
Yes. 

Was  it  correct  ?-^I  do  not  remember. 

Did  it  appear  correct  or  incorrect,  generally 
speaking  ?— -Yes,  it  appeared  correct.  . 

Did  you  see  anythmg  that  was  incorrect  ? — 
I  cannot  say  that  i  did. 

Doyou  know  where  it  was  sold  ? — ^At  Thomas 
BairdV 

[Pamphlet  was  handed  to  the  witne9s.J 

Did  you  buy  this  copy  in  Baird's  shop  ?— - 
Yes,  I  believe  I  did ;  I  am  certain  I  did. 

Do  you  see  your  subscription  there?— Yes. 

Where  did  you  write  it? — In  Mr.  BrownV  ■ 

Who  was  in  the  shop  when  you  bought  it  ? — 
I  do  not  recollect. 

Lord  AdvooaU.-^ATe  there  any  booksellers  in 
Kilmarnock  ? — ^Yes. 

Hugh  WiUon  cross-examined  by  Mr.  QraiU 
for  Alexander  McLaren. 

What  was  the  object  of  the  meeting? — To 
consider  the  propriety  of  petitioning  paniament 
for  a  reform. 

Had  the  meeting  any  other  object  ? — ^None^ 
that  I  know  of. 

Did  any  person  recommend  aaything  else  ^ 
^Not  that  I  heard. 

Did  you  hear  the  panel  McLaren  speak  upon 
that  occasion  ? — ^Yes,  I  was  there  at  the  time,  X 
heard  part  of  his  speech. 

Was  it  a  very  stonny  day  P — ^Veiy  stormy. 

Was  there  hail?— Yes. 

Were  many  umbrellas  up? — ^A  great  num- 
ber. 

Was  any  noise  made  by  the  pattering  of  the 
hail  upon  them  so  as  to  prevent  you  from 
hearing  ? — ^Yea. 

Was  every  thing  conducted  in  an  orderly  and 
peaceable  manner? — Yes,  they  did. 

Did  you  sign  the  petitions  to  the  legislature  ^ 
— Yes. 

Do  you  recc^ect  what  the  terms  of  the  pe* 
titions  were  ? — ^No,' 

Are  vou  well  acquainted  with  the  panel 
Alexander  McLaren  ? — ^Yes.  - 

How  long  have*  you  been  acquainted  withr 
him? — ^A  great  many  years;  five  or  six,  or 
better. 

What  character  has  he  possessed  as  to  peaee- 
abledemeanourandloyalty  ?— A  good  character^ 
as  far  as  I  know. 

Has  he  had  the  reputation  of  being  seditious 
and  troublesome,  or  loyal  and  peaceable  ?— 
The  latter. 

Was  he  ever  connected  with  any  sod^7 — 
I  do  not  know ;  he  was  a  member  of  fSe  com-- 
ipittee  for.  petitioning  for  reibrm.   >  ^  ,    - 

But  with  none  other  ?^With  no  other  thail 
knowo£ 


d7] 


ttiuf  Tkomat  Batrdjbr  SetUtioH, 


A.  D.  1817. 


[38 


Do  yon  think  joa  would   probably  have 
lieard  of  it  if  tlM  fact  had  been  so  t — I  think 


so. 


HaTejoD  erer  heard  him  iklk  of  the  measores 
of  government  ? — Yes. 

What  waj  did  he  express  himself? — ^He  used 
to  approye  of  the  measures  of  government. 

um  you  eyer  hear  any  arguments  between 
him  and  others  on  politics  ? — Yes,  he  took  the 
government  side. 

Do  yoQ  know  of  his  having  been  a  member 
of  any  miUtary  body? — I  believe  he  served  in 
the  Local  Militia,  in  the  Rifle  corps. 

Did  you  look  on  him  as  a  man  of  a  sedi- 
tious turn  of  mind,  or  as  a  friend  to  the  go- 
vernment?— ^As  a  friend  to  the  government. 

Did  jou  ever  hear  any  imputation  to  the 
contrary  cast  on  him? — I  do  not  remember 
-ever  hearing  any. 

Do  yon  know  any  thins  about  his  objecting 
to  his  speech  being  printed  ? — No. 

Lara  Advocate, — ^Do  you  know 
the  petition? — No. 

Did  yon  ever  read  it? — ^Yes. 


you  know  who  drew 


Dand  Bow  sworn. — Eiamined  by 
Air.  DrwnnoHdm 

What  is  Mr.  Baird?— He  has  a  grocer's 
shop. 

Were  the  pamphlets  sold  at  Mr.  Baird*s 
shop? — Yes. 

Many  of  them? — ^Many.  I  could  not  say 
as  to  the  number. 

Some  doaens? — Yes;  some  dozens. 

Fifty  copies? — I  believe  there  mif^U 

What  were  they  sold  for? — ^Fourpence  each. 

DaM  Bom  cross-examined  by  Mr.  Jeffity 
for  Thomas  Baira. 

Do  you  know  if  they  were  sold  any  where 
^e? — ^Yes. 

LordAioocaU, — Where? — Different  persqns 
of  the  committee  got  them. 

Mention  who  got  them? — Mr.  Finnie,  Mr. 
Johnstone. 

How  do  you  Imow  that? — Because  I  saw 
them  given  away.  They  were  given  to  be  sold 
by  Mr.  Baird. 

Besides  thpse  given  to  the  members  of  the 
committee,  several  dozens  were  sold  in  your 
shop  ? — ^Yes. 

Jamtt  Sainton^  sworn, — Examined  by 
Mr.  Drummond, 

[The  pamphlet  was  handed  to  the  witness.] 

Qave  you  seen  this  pamphlet? — ^Yes. 

Have  you  seen  in  it  the  statement  of  a 
speech  said  to  have  been  made  by  you  ? — Yes. 

Have  yon  read  it?  Is  it  a  fair  account  of 
what  von  said  ? — ^It  is  near  about  it. 

Did  you  corop6se  the  speech  yourself?-^ 
No. 

Where  did  you  get  it? — From  Mr.  Baird. 
•    Before  the  meeting!— Yes. 

Did  you  speak  or  read  it  ?— 'I  read  it. 


James  iSamfoii  cross-examined  by  Mr.  Jeffrey 
for  Thomoi  Baird.    . 

Look  at  what  is  written  before  the  beginning 
of  that  speech,  where  it  is  stated,  that  a  Mr. 
Burt  and  a  Mr.  White  could  not  attend,  but 
had  transmitted  addresses  to  be  read  to  the 
meeting.  Yours  was  given  in  the  name  of 
Mr.  Burt,  and  you  understood  it  was  Mr. 
Burt's  speech  you  read? — Mr.  Baird  said  Mr. 
Burt  haa  sent  it  to  him. 

It  was  not  Mr.  Baird's  writings  but  Mr. 
Bun's?— Yes. 

The  following  Declarations  of  the  Panels 
were  then  read. 

Declaration  of  Alexander  M'Laren^ 

At  Kilmarnock,  the  26th  day  of  February 
in  the  year  1817,  in  presence  of  William 
£aton,  Esq.  Sheriff-substitute  of  Ayrshire, 
appeared  Alexander  M'Laren,  weaver  in 
Kilmarnock;    who  being  examined,  de- 
clares. That  he  is  a  native  of  Perthshire, 
and  in  April  next  he  h^s  been  eight  years 
in  Kilmarnock.    Declares,  That  ihere  was 
a  public  meeting  held  at  the  Dean  Park, 
near  Kilmarnock,  on  the  7th  of  Decem- 
ber last :  That  that  meeting  was  for  the 
purpose  of  petitioning  Parliament  for  a 
reform  of  gnevances.  Declares,  That  pre- 
vious to  that  meeting  there  was  a  com- 
mittee of  certain  individuals  in  Kilmar- 
nock, for  the  purpose  of  bringing  about 
the  said  meeting :  That  the  declarant  at- 
tended that  committee,  and  David  Itam- 
say  Andrews,  writer  in  Kilmarnock,  Tho- 
mas B{drd  and  Andrew  Finnic,  merchants 
there,  also  attended  that  meeting,  and  the 
declarant  has  reason  to  suppose  they  were 
members  of  it  as  well  as  nimself.    De- 
clares, That  the  declarant  first  appeared 
on  the  hustings  and  opened  the  meeting ; 
and  being  shewn  an  ''Account  of  the 
Proceedings  of  the  Public  Meeting  of  the 
Burgesses  and  Inhabitants  of  the  town  of 
Kilmarnock/'  and  wherein  is  engrossed, 
on  part  of  the  fifth  page,  sixth,  and  part 
of  the  seventh  page,  what  the  declarant 
said  at  opening  the  above  meeting.  De- 
clares,   That  the  declarant  has  perused 
said  speech,  and  it  is  near  what  the  de- 
clarant said  on  the  above  occasion,  except 
what  is  said  about  the  middle  of  the  se- 
venth page  about  allegiance>  which  the 
declarant  thinks  he  did  not  deliver  in  the 
words  as  expressed  in  the  publication. 
Declares,  That  on  the  morning  of  the 
above  meeting,  the  declarant  put  into  wri- 
ting what  he  must  say  at  the  opening  of 
the  meeting :  That  he  afterwards  gave  his 
part  of  the  manuscript  to  those  who  were 
appointed  by  the  committee  to  superii^ 
tend  the  printing  of  the  proceedings,  that 
the  same  might  be  published  along  with 
the  rest.'  .Declares,  That  James  John- 
stone, muslin  agent  tn  the  Waterside  of 


IIOJ 


57  GEOBGE  UI. 


Trial  o/Akxamdtr  U'Lare* 


L49 


Rilraarnock,  was  called  to  the  chair,  and 
on  that  occasion  he  made  a  nteech,  vhkh 
was  much  approved  of  hj  those  present. 
Declares,  That  the  resolutions,  as  engross- 
ed in  said  publication,  are  the  same  that 
were  read  at  the  public  meeting,  and  the 
manuscript  was  read  to  the  committee, 
previous  to  the  meeting,  by  Thomas 
Baird,  merchant  in  Kilmarnock,  one  of 
the  members.  Dechu^s,  That  Hugh  Craw- 
ford, printer  in  Kilmarnock,  was  employed 
to  jpnnt  the  proceedings  of  the  meetmg, 
which  were  utetwards  sold  at  fourpence 
a-piece,  to  enable  the  committee  to  de- 
fray the  expenses.  Declares,  That  the  de- 
clarant attended  «  meeting  of  the  commits 
tee,  when  those  who  spoke  gave  in  their 
manuscripts  for  printing,  and  the  decla- 
rant thinks  the  foresaid  Thomas  Baird  was 
present :  That  a  committee  was  appointed 
to  superintend  the  printing,  and  the  said 
Thomas  Baird  and  Andrew  Fionie  were 
«f  that  committee.  And  being  shtewn 
the  printed  report  before  mentioned,  de- 
"clares.  That  he  heard  none  of  the  authors 
find  fiiult  with  any  thing  that  is  therein 
contained;  and  the  said  publication  is 
doqueted  and  signed  by  the  declarant  and 
•Sheriff  as  relative  hereto.  Declares, 
That  the  words  on  the  sixth  page,  '*  The 
fact  is,  we  are  ruled  by  men  only  solici- 
tous for  their  own  aggrandizement,  and 
they  care  no  farther  for  the  great  body  of 
the  people  than  they  are  subservient  to 
their  accursed  purposes,**  were  in  the  ma- 
nuscript wrote  by  the  declarant,  but  were 
not  repeated  by  him  at  the  public  meeting 
when  on  the  husting^s  as  above.  And  the 
foregoing  declaration  being  distinctly 
read  over,  he  declares  that  it  cont^uns  the 
truth.    In  witness.  Sec.  &c. 

Declaration  of  Thomas  Baird. 

-AX  Kijmamock,  the  26th  day  of  February 
in  the  year  1817,  in  presence  of  William 
Eaton,  Esq.  Sheriff-substitute  of  Ayrshire, 
appearied  Thomas  Baird,  merchant  in 
Kilmarnock;  who  being  examined,  de- 
clares, That  there  was  a  meeting  of  several 
persons  in  the  town  of  Kilmarnod^  in  the 
month  of  November  last,  for  the  purpose 
of  taking  Into  consideration  whether  or  not 
there  should  be  a  general  meeting  for  the 
purpose  of  petitioning  the  Prince  Regent  | 
and  both  Houses  of  Parliament  for  a  re- 
form :  That  the  declarant  was  preses  of  the 
first  meeting  only:  That  there  were  seferal 
•after  meetings,  some  of  which  the  declarant 
attended,  and  the  7th  of  December  last 
was  fixed  for  a  general  meeting  at  the 
Dean  Park :  That  the  declarant  attended 
•that  meeting,  and  Alexander  M'Laren, 
"weaver  in  iLilmarnock,  mounted  the 
hustings,  and  opened  the  meeting.  with«  a 
speech :  That  Jaxnes  Johnstone,  mslin 
•ngent  in  KUmamock,  ^p^a^  called  to  the 
vhair^  and  read  a  9peeo|^,tQjhe  mating 


from  a  memorandum  book.  And  being 
9hown  a  manuscript  consisting  of  nine- 
teen pages,  declares.  That  he  is  pretty 
certain  that  it  as  the  same  that  he  read 
to  the  meeting,  and  which  the  declarant 
saw  some  days  afterwards  in.  Walter 
Andrew's  office,  and  which  is  doqueted 
and  signed  as  relative  hereto.  Declares, 
That  the  proceedingn  were  ordered  to  bo 
printed,  and  the  declarant  was  appointed 
Dy  the  committee,  along  with  several 
others^  to  superintend  the  printing  :  That 
Uie  declarant  assisted  ii^  correcting  the 
grammatical  errors  in  the  Manuscript, 
along  with  the  said  Walter  Andrew,  and 
the  declarant  assisted  a  little  at  the  print- 
ing-office in  correcting  the  proof  copy. 
And  beiog  shown  a  half-sheet  of  paper^ 
tided  on  the  back  '<  No.  5.  Mr.  Burt'a 
letter/'  declares.  That  said  words  ace  of 
the  declarant's  band-writinp^  and  the  said 
halMieet  of  paper  was  given  in  hv  the 
declarant  to  the  printer,  along  witti  the 
rest  of  the  manuscripts ;  and  said  half- 
sheet  of  paper  is  doqueted  and  signed  by 
the  decnrant  and  sheriff-subMttnte  as 
relative  hereto.  Declares,  That  the  pro- 
ceedings of  said  meeting  were  printed 
by  Hugh  Crawford,  and  a  great  Mmber 
of  copies  were  sent  to  the  declarant's 
•hop,  and  be  reuiled  liheni  at  fourpence 
a-piece;  and  being  shown  a  cop^p  e€ 
the  publication,  declares^  That  it  is  a 
copy  of  the  proceedings  whieh  weie  pub^*- 
lished  and  circulated  as  above,  and  is 
doqueted  and  signed  as  relative  hereto  ; 
all  which  he  decides  to  be  true.  In-  wit- 
ness whereof,  &c.  &c. 

SVIDBXCS  tZI  BXOULrAflTION. 

Jamm.  Smmrn  swom.-^-Examined;  \ff 

Mr.  'Crani, 

*        _ 

Yon  remember  a  public  meeting  at  Kilmar- 
nock last  December.  Was  it  for  the  purpose 
of  petitioning  parliament  ?  or  what  was  th« 
object  ? — To  petition  parliament. 

Were  von  a  membier  of  any  committee  re- 
garding that  meeting  ? — Yes. 

Are  you  well  acquainted  with  the  objects  of 
those  who  were  concerned  in  that  meeting  ?-— 
I  know  as  to  any  meetings  I  was^  at  of  the 
committee,  what  I  heard  there. 

What  was  its  object  then?—- Entirelyto  pe- 
tition pariiament. 

Do  you  know  who  were  proposed  to  open 
the  business '  of  the  meeting  by  a  speech  ?^^ 
Different,  persons. 

Do  you  remember  any  of  their  names^?-*! 
could  not  say  I  entirely  recollect,,  except  him  - 
that  did  it ;   bnt  I  know  that  others  were  pro- 
posed. 

At  what  time  was  it   proposed  that  Infr. 
H'Laren  should  open  the  meeting? — About  a-, 
weelf. before  jthQ.paeetiog  took  ris^i  * 

Hid  he  accept  readily  thi^.mfi^  of  •  ofteMg 
the  meet]i^9.J-«lie  did  la^ 


4  > 


41] 


awB  juMMMf  BnnLjw  Sttknon^ 


A.  B«  i«n* 


CM 


Did  te  dqtet  to  doiiif  it?— Y«ik 

Did  lie  mtggm  toy  one  ebe  to  do  ttf— 


Whom  f— Mr.  Blackwood. 

Did  be  suggest  any  other  penon? — He  was 
for  imposing  it  on  me. 

Did  you  consent  to  do  it? — Ho, 

What  was  the  last  time  he  urged  yon  f — 
ilboM  an  kQw  befinrt  the  meclkkg  took 
Mace* 

Did  he  state  he  was  Mtpawd  or  unnre- 
pared  ? — I  did  not  know  ttuA  he  had  anjthinff 
orepared ;  but  he  said  he  wei  not  a  fit  hand 

It  wi»  on  ironr  refusal  that  he  undertook  the 
office  himself? — ^Tes. 

What  was  the  object  of  the  petition  ?  What 
was  it  about? — ^To  obtaid  a  reform  in  parlia- 


Was  there  any  conf  ersation  as  to  what  was 
to  be  done  in  case  the  petitions  were  not  as- 
sented to  ? — Yes. 

Whafwas  to  be  done? — ^Tb  petition  again. 

Did  you  hear  Mr.  M'Lau-en  make  his 
apeedi  ?— I  was  present  and  heard  some  of  it^ 
but  I  did  not  hear  it  distinctly. 

From  what  cause  ? — One  reasod  was>  that  I 
was  behind  him,  and  the  wind  carried  the. 
aoand  of  his  voice  to  die  other  side  ;  and  as  X 
knew  I  had  to  read  a  speech  myself,  I  was  a 


late?  Did  be  oppoM  those  ttiat  mm%  mi  tile 
Opposition  side  WYes. 

Was  he  a  man  ^yen  to  riototti  prooeedings, 
or  was  he  industrious  sC  his  business,  and  quiM 
in  his  tonduct?— 'He  was  indnstrioQl  ^  Ui 
bnsinessy  and  quiet  in  his  conduot. 

Was  he  ever  connected  with  any  aoefittfv 
except  this  coannitlee  ? — No,  n«TW. 

Is  he  a  sober  man,  or  is  he  given  to  ciwpiiliy 
and  liquor  ?-^Not  that  I  know  of ;  hois  a  sober 


FioiB  the  general  import  of  die  epe«c1s  dM 
ywigatbeaiu  purpose  WaS|loetoite  riot  end' 
dbturbance,  or  to  induce  People  to  come  fy^ 
ward  to  sign  this  petition  ? — Tiie  latter. 

Do  you  know  that  petitions  were  proposed  ? 
--lfc>ttlQS&.  The  resolutions  wei«  roid  and 
approved  of,  and  the  petitiOtiff  were  to  be  ae-^ 
cording  to  the  spirit  or  these  resolutions^ 

Wb^  ste^  were  taken  for  preparing  the 
petitions?—)  could  not  say  positively  t^ut 
tbat« 

Did  you  ngn^  any  petitions  ? — Yes. 

How  many? — -Tbree,  I  think. 

To  whom  were  they  addressed  ?^-To  the 
Prince  Regent,  the  House  of  Lords,  and  the 
House  of  Commons. 

Do  you  know  whether  they  were  forwarded  ? 
— ^I  beliere  they  were. 

Were  you  ever  molested  in^  consequence  of 
having  signed  any  of  these  petitions  ?-^No. 

Did  you  overhear  of  any  6ne  being  mo* 
tested?— No. 

Hftve-you  known  Mr.  M*Iiaren  a  long  time  f 
— A  considerable  time. 

In  yoor  opinion  what  was  his  character  as  to 
qinetness  of  demeanor  and  loyalty  ?-^He  was 
regarded  as  one  of  the  loyalest  men  where  he 
lived  previous  to  this  charge  of  sedition^ 

Have  you  ever  oonverawl  with  him  on  poli* 
tieal  questioBS  r-*SometiineB'  about  thv  doors ; 
and  I  have  heard  him  disj^ute  withothei%  and 
support  the  side  of  administration. 

How  lon^  ago  i»  it*  since -you  heard  bin  eat- 
pteM  his  opmkn  on  saeb  subfeeMi  ?(«-«More  than 
a^rm^iafieii 

In  disputing  with  others  what  M%^46A^  hi^i 


Were  yon  present  at  At  coianittee  when 
there  was  a  talk  of  printing  tba  proceedings  J**^ 
zcs. 

Did  yon  see,  or  hear  read  before  the  oom^ 
mittee,  a  manuscript  nurporting  to  be  a  speech 
of  Mr.  McLaren? — It  was  not  at  that  com- 
mittee I  think ;  it  was  at  a  previous  one. 

There  was  a  sobeeqaevt  ooxBnrtttee?-«Y6S. 

And  you  heald  read  eivev  wlwt  f«ifovted 
to  be  a  speech  of  Mr.  McLaren  ? — Yes. 

[fThe  pamphlet  was  handed  to  the  vritneaa^} 

Dkl  yo«  ever  read  this  pulditeatio»?-^Y4^ 

De  you  sedoHeet  a  passage  m  the  p¥ulfed 
speech  about  allegiance? — I  could  aal  sa^;  I> 
think  so. 

Look  at  these  words.  Da  ytta  riUVeiiib«iF 
bearkig  die  manueeript  read?  and  do  ybu 
recollect  in  it  the  words  at  the  end  diour 
allegiance,  and*  so  on,  which  are  nbw  in*  that 
prittled  piper  V-I  eoaM  not  say  they*  W€re 
there. 

Can  you  say  they  werr  Ae<i  there  T-^ttley 
were  not  there,  X  thinh^  when  he-delivered  the 
pwper. 

Say  what  was  not  there  ?— I  think  the  tW6^ 
or  three  last  lines  were  ttot  ia  the  manuseript : 
*'  Yes,  my  flellow  countyyittfepM^^  imp  sa^h>  a  casi^ 
to  -^^^  with' our  allegian4l«<i'' 

Do  you  recollect  the  app^iVttOft  of  tKtf 
manuscripr!-^!  thlnk4VWttS<roMedii«if  a^nditi- 
row  strip  Ulie  a  ^heet*  folded^  over  agi^iii; 
It  had  been  folded,  I  think,  before  if  wtiiM 
written  o&t 

Was  the  papM  foldod  thur?-f  A?^e«l  Of* 
foolscap-paper  shown  to  the  witness  folded  ia 
octavo.]'^  lea,,  it  was  folded  in  that  manner.' 

Waa  it  written  bookwise  F-^Ves,  t  thinl^< 
so. 

I  do  not  ask' you  who  did  what  I  am  going; 
to  mention,  but  did  any  body  at  that-comnii" 
tee,  not  Mr.  Whuehj.  make  aav  pencil  mark* 
ing  ou  that  p^per  ? — YesyX  think  tliey  did.   It* 
was  not  Mr.  M^ren. 

Do  you  know  what  theeO' marks  Were?>*-L 
did  not  see  the  marks* 

Did  you  hear  any  persoaread  tbe  alteratioa 
made  by  the  marks  ?-^Ye9» 

Was  this  correction  imntediately^  read  ?-^ 
Yes. 

Did  the  person  who  read  that  conrectionvead  • 
it  as  a  correction  he  had  made  withthese  peadL 
marks  P^-I  think  ho  did, 

WhK^  was  the  puqKwt  oCtbat  cofreoiioal-^ 
It  is  now  at  the  end  of  this'printed  sMOth. 

You  8iglMd<.tli«  p^litioa'to'  iM»«HoaSfiM>f 


431 


£7  GEOROE  lU. 


Trial  tjf  Alexander  M'Laren 


[44 


.  Commons :  should  you  know  the  purport  of  it 
if  you  saw  it  r — I  think  I  should. 

Look  at  that  ?  Jpage  82,  of  the  printed  yotes 
of  the  House  ot  Commons.] — I  cannot  re- 
collect eyery  word  or  sentence.  I  think  that 
is  the  petition.  I  see  sentences  that  were 
there. 

You  recollect  the  words  where  you  see  a  X  ? 
r~I  could  not  say  positlTely. 
•  Do  you  recollect  any  of  them  ? — One  part 
ahout "  indemnity  for  the  past"  in  the  sentence 
— [The  passage  which  Mr.  Grant  read  was 
pointed  out  to  the  witness.] 

Do  you  remember  that  passage  ? — I  cannot 
remember  it.' 

James  Samaon  cross-examined  by  the 
Lord  Adoocate, 

Who  were  present  when  these  pencil  marks 
were  made  on  the  manuscript  speech } — ^I  for 
one. 

I  suppose  so.  Who  more? — ^John  Ken- 
nedy. 

That  is  two.  Any  more  ? — Archibald  Craig. 

That  is  three.  Who  else  was  there  ? — I  do 
not  recollect  any. 

Do  you  say  there  were  no  more  present  ? — 
There  were  others. 

Let  us  hear  the  names  of  some  more  of  them  ? 
—Mr.  Baird  was  there. 

Was  M'Laren  ? — He  was  there. 

Was  it  by  any  of  those  you  haye  named 
that  the  pencil  marking  was  made  ? — Tes. 

Which  of  them?— Mr.  Baird. 

You  have  the  book  lying  before  you,  tell  us 
what  was  altered?  —  The  latter  clauses  or 
clause. 

Was  any  thing  put  in  or>  left  out  ? — It  was 
put  in  the  manuscript  by  Mr.  Baird. 

Did  he  give  his  reason  for  putting  it  in  ? — 
Yes;  because  the  manuscript  deliyered  was 
not  complete  according  to  the  way  in  which 
the  speech  was  spoken,  and  therefore  Mr.  Baird 
put  it  in.  .   , 

Did  Mr.  M'Laren  make  any  objections  to 
this  alteration  ? — I  did  not  hear. 

Mr.  Grant. — ^We  would  haye  brought  seve- 
ral witnesses  in  addition  to  those  for  the 
crown,  to  testify  as  to  the  character  of  the 
prisoner  McLaren ;  and  it  is  my  duty  to  inform 
you  of  a  mistake  by  which  we  haye  been  de- 
priyed  of  this  opportunity.  The  letters  of 
exculpation,  with  instructions  to  cite  witnesses 
to  proye  the  good  character  of  the  prisoner 
'^M'Laren,  were,  by  a  mistake  of  the  proprietors 
of  the  coach  at  Kilmarnock,  forwarded  to  a 
person  of  the.  some  mane  as  that  on  the  address 
on  the  parcel  in  a  Afferent  town^  aiui  not  re- 
turned till  the  night  of  Thursday  before  the 
trial,  which  circumstance  we  are  m  condition 
to  proye  to  your  lordships;  and  we  have 
therefore  nothing  we  can  legally  produce  in 
addition  to  the  testimony  given  of  their  cha- 
racters. But  we  haye  certificates  which  your 
lordships  may  perhaps  allow  to  be  read. 

Lord  JuUice  Ckrkt-^Hoi  at  preseut;    you 


may  state  the  import  of  them  in  the  address  to 
the  jury ;  but  they  cannot  be  put  in  here  in 
evidence. 

Lord  Adoocate, — If  apy  statement  had  been 
made  to  me  of  a  wish  that  the  trial  should 
have  been  delayed,  I  would  have  willingly 
conceded  the  delay. 

Mr.  Grpnt, — ^Tbe  thiAg  was  not  ttiought  of 
sufficient  importance,  and  the  mistake  did  not 
appear  till  last  night. 

Mr.  Clerk, — Your  lordships  have  heard  some 
evidence  which  shows  that  the  meeting  was 
for  the  purpose  of  petitioning  the  Regent  and 
the  two  Houses  of  rarliament.  And  you  have 
heard  that  a  petition  was  forwarded  to  the 
House  of  Commons ;  and  reference  has  been 
made  to  a  paper,  which' we  state  to  be  a  copy  of 
the  printed  votes  of  that  house.*  We  wiidi 
to  produce  evidence  of  this,  and  of  some  others 
of  the  same  description,  for  the  purpose  of 
showing  what  sort  of  language  is  permitted  to 
that  House.  I  need  not  state  how  necessary 
it  is  for  our  plea  to  show  you  what  language  it 
is  lawful  to  use  in  such  cases.  lu  preparing 
the  petitions,  and  in  debates  on  the  subject, 
such  language  must  of  course  also  be  permit- 
ted. We  can  have  the  productions  proved  by 
Mr.  Grant. 

Lord  Advocate, — I  think  it  competent  to  ob- 
jtet  to  these  productions,  and  to  the  evidence 
proposed  to  be  brought  as  to  the  accuracy  of 
them. 

Mr.  C/crA:,— Doyou  admit  them? 

Lord  Adoocate. — \  have  not  read  them,  and 
I  know  nothing  of  them. 

Lord  Justice  Clerk, — The  lord  adyocate  only 
admits  that  it  is  the  practice  to  print  votes  oif 
the  House,  and  that  these  offei^  in  evidence 
have  the  appearance  of  being  copies.  It  is 
not  usual  to  call  on  counsel  to  be  evidence  in 
the  trial.  As  an  agent  for  the  prisoners  could 
not  be  admitted  as  evidence,  I  think  it  would 
be  better  to  call  on  some  other  person  than 
Mr.  Grant.f  I  observe  a  noble  lord  present 
whose  testimony  might  be  given. 

Lord  Gilliet, — Mr.  Grant  can^be  examined 
as  a  hayer. 

Ljrd  Advocate, — I  go  so  far  as  to  say  that 
I  haye  no  reason  to  doubt  the  genuineness  of 
the  copies. 

Mr.  Clerk, — I  conceive  you  haye  been  in 
the  use  to  receive  papers  from  agents,  and  to 
examine  them  as  havers  of  these  papers.  An 
agent  does  not  give  parole  evidence  in  the 

'  *  £yen  the  printed  Journals  are  not,  in  Eng- 
land, ^evidence.  8  How.  Mod.  St.  Tr.  685; 
1  Phil.  Ey.  406. 

f  Mr.  Grant  the  proposed  witness,  was  one 
of  the  counsel  for  the  panel  M'Laren ;  he  was 
at  the  time  of  this  trial  a  member  of  the  House 
of  Commons^ 


451 


and  Tkotttttt  Btttrdfm  Sedition. 


A.  D.  1817. 


[46 


cause,  but  only  gifet  his  testimony  to  the  au- 
thenticity of  a  pgper  in  his  poflsesBion;  that  is 
all  that  Mr.  Grant  would  be  asked  to  do.  Mr. 
Grant  can  certify,  not  only  that  he  believes 
them  to  be  the  printed  Totes  of  the  House  of 
Commons,  but  |also  that  he  lecetyed  them 
under  cover  from  the  Vote-office,  certifying  to 
him  that  they  are  the  votes  of  the  House  of 
Commons. 

Lord  Adoocate. — The  evidence  would  not  be 
complete ;  Mr.  Grant  can  only  explain  how  he 
came  by  these  papers. 

Jjord  JvMtice  Clerk, — In  a  legal  sense  what 
Mr.  Grant  could  certify  would  not  make  them 
evidence.  The  question  of  their  being  actually 
the  votes  of  the  House  would  remain  to  be 
established. 

Mr.  Gerk. — After  they  are  made  public, 
they  are  matters  of  notoriety,  which  any  per^ 
sons  may  refer  to  before  your  lordships. 

Lord  AdvocaU.^I  admit  my  belief  of  their 
genuineness. 

John  JndretDS  sworn. — Examined  by  Mr. 
Jeffrey  for  Mr.  Bidrd, 

Are  you  chief  magistrate  of  Kilmarnock  ?— 
Yes. 

Were  you  in  that  office  in  December  last  ? — 
Yes. 

Do  you  recollect  a  public  meeting  in  the 
Dean-park  ? — I  do. 

Did  you  receive  any  notice  or  application 
regarding  that  meeting } — ^I  think  I  aid ;  one 
or  two  days  before  it  took  place. 

Who  waited  upon  you? — Mr.  Baird  met  me 
in  the  street,  and  told  me  of  the  meeting  a  few 
days  before. 

Wliat  did  he  state  to  you  ? — ^That  he  was 
appointed  by  the  committee  to  wait  on  me,  to 
inform  me  the  meeting  would  take  place  if  I 
would  allow  it^  and  that  if  I  would  not  he 
wrguld  give  up  the  intention  of  holding  it ;  I 
said  I  did  not  approve  of  the  meeting,  but  I 
thoiwht  I  eoold  not  prevent  it. 

VT^M  it  a  numerous  meeting  P — I  could  noi 
say,  I  was  not  there. 

Does  it  consist  with  your  knowledge  that 
the  conduct  of  those  at  the  meeting  was 
orderiy  or  otherwise  ? — ^There  Was  notmng  of 
riot  or  disturbance  that  I  heard  of. 

No  breach  of  the  peace  ? — ^None. 

Have  there  been  any  since?  —  I  know  of 
none ;'  I  recollect  none. 

Was  there  any  kind  of  disturbance  recently 
before  ?-^In  September,  I  believe. 

You  are  acquainted  with  Mr.  Baird  ?— >Yes, 
I  have  been  long  acquainted  with  him. 

He  is  in  a  respectable  way  of  life  ? — ^Very 
respectable. 

11 'he  a* quiet  and  peaceable  person,  or 
tomnltnous  . and  disorderly? — Always  peace- 
able. 

Doel  it  <$OBsist  vftith^your.  knowledge  that  he^ 
hdd  a  military  cominission  in  a  volunteer  or*' 
local  militia  cdrps  ?^I  'generally  uiuierstood  he 
^|s  a  captain. 


Have  you  seen  him  acting  in  that  capacity  ? 
— ^I  think  I  have. 

Down  to  what  time  did  he  so  act  7 — I  could 
not  say. 

WaUer  Andrew  sworn. — Examined  by 
Mr.  Cockbum, 

What  are  you  ?  A  writer  ? — ^Yes. 

Do  you  know  Mr.  Baird  ? — ^Yes. 

Do  you  rerpember  the  meeting  held  at  Kil- 
marnock in  December  last? — ^Yes. 

There  was  a  committee  for  arranging  the 
business? — Yes. 

Were  you  a  member  of  it? — ^Yes. 

Was  Mr.  Baird  ?— Yes. 

You  have  seen  him  at  the  committee  ?— I 
have. 

Do  you  recollect  any  discussion  after  the 
meeting  about  printing  the  speeches  delivered 
there  ? — ^Two  or  three  days  after  the  meeting 
Mr.  Baird  called  on  me  with  the  manuscript 
of  a  speech  which  was  delivered  there.  I  said 
I  thought  indecorous  expressions  were  in  it^ 
which  ought  to  be  kept  out.  He  urged  that 
objection  at  a  meetmg;  but  the  objection 
was  overruled. 

What  were  the  precise  expressions  which  yon 
called  indecorous  or  vulgar  ?  Do  you  remem- 
ber the  expressions  ? — I  could  not  repeat  the 
words :  the  passage  was  the  same  in  the  ma- 
nuscript, as  in  the  printed  pamphlet,  where  I 
read,  *^  which  he  is  oound  to  do  by  the  consti- 
tutional laws  of  the  country;  but  should  be  be 
so  infatuated  as  to  turn  a  deaf  ear  to  their 
just  petition,  he  has  forfeited  that  allegiance^ 
Yes  I  my  fellow-townsmen,  in  such  a  case  to 
with  allegiance.'' 

What  was  it  you  objected  to  f— What  I  have 
read. 

And  Mr.  Baird  concurred  in  that  objection, 
but  he  was  out-voted  ? — ^Yes. 

Was  there  an^  other  speech,  to  the  printing 
of  which  he  objected  ? — ^The  last  in  the  pam- 
phlet ;  the  speech  of  Mr.  Kennedy. 

What  was  his  objection  to  Kennedy's  speech  ? 
— ^He  said  it  was  nonsense. 

Did  he  object  to  any  of  the.  othen  ?--^To 
part  of  Mr.  Burt's. 

What  was  the  objection  to  it  P—  He  said  it 
would  have  been  letter  if  it  had  been  clothed' 
in  milder  language. 

From  your  conversation  with^him,  did  you 
understand  him  to  be  the  author  of  that  speech  ? 
-^No.  He  expressed  regret  that  some  of  it 
was  not  expressed  in  milder  language. 

Did  you  ever  hear  him  express  a  desire  to 
have  every  thing  dgne  quietly,  so  as  to  give 
oiTenca  to  nobody  ? — ^Yes. 

Was  there  any  riot  at  the  meeting?— Not- 
that  I  heard  of. 

Did  he  ever  express  to  you  any  desire  tfant 
government  should  be.  overawed  ?7-No. 

He  wished  regularity  of  prokjeeding? — ^He 
said,  the  only  object  was  to  petition  constittf- 
tionally,  so  as  to  give  offiince  to  no  one.     .       . 

What  was  the  object  of  printing  the  pro- 
ceedings?—To  defray  the  expenses  intenrred. 


4ffi 


1  ^HB^ass  in. 


Wtf  ^^fumiv  NflMm 


r4e 


Rer.  JAmef  IGr ihooorf  sworn ^ — fixumined  by 

Mr.  Jeffrey. 

Are  yoa  acquainted  with  Mr,  Baird?*-rl 
have  had  that  pleasure  for  nearly  two  years. 

Do  you  know  him  intimately? — Very  inti* 
mately.    No  one  more  so. 

In  the  course  of  yi>ur  aoquamtanee  with  Mr. 
Baird,  have  youlnd  ODQTeraatioiis  with  hira 
•a  political  sttfagects  ?— I  have. 

Has  he  ei^prnsed  hH^  sentiments  with  apptr 
rept  .sii^cen]^  4n4  eon?i^an?— rWith  the 
greatest  I  have  no  doubt. 

Did  he  express  9n  attaoUoieiit  to  the  ooasti- 
tution  as  established  by  laW)  or  a  doiix*  to 
have  it  altered  ? — He.  eiipressed  %  desire  (hat 
the  popular  part  of  the  constitution  shouU  be 
fUieB^thened  an4  inen^gsi^*  MTer  that  the 
constitution  should  be  ov^rlQXted* 

He  wished  some  r^fomnstion  of  the  rcpfe- 
aentation  of  the  Hojase  9f  Comwiaiis  f— Yea. 

Did  he  ever*  eif^l^^  by  what  means  he 
thought  ^lis  )ihott]4  be  ^yitenqpled? — I  have 
oft^n  h/eard  him  say  h?  w^  anxious  that  any 
thing  Uke  viol^nqe  sho^  <  be  avoided,  aad 
that  none  but  constitutional  meaaur^a  ^ouM 
\/e  taken. 

Does  Mr.  Bair4  attei^i  your  congnegatioD  7 
—Yes. 

Is  he  a  man  of  peacfoaSle  an4llK>i9li.con4uct? 
i^-To  the  best  of  my  knowled^  he  ie  sow 

Did  he  ever  discover  any  ^onjew^y  lo  rioteus 
or  disorderly  cooduot  ?-rrl  %Md^'Obiirted  ajiy 
ti^Dg  or  that  kind  i«  him*. 

He  is  a  peaoeable  jam  WI  think  4P» 

Has  he  si^y  f}imil|[)-rHei  haa  «#iref«l  chilr 
dren. 

Dp  you  Ihink  Mm  Q9^bb)  of :  i|»tonlionaI1y 
exciting  tumult  or  violence  among  the  people? 
—I  should  cei^tajiily  think  he  it  itog^iheff  in- 
capable of  designedly  doing  so. 

John  WyUie  syfon, — Examined  by 
Mt.  CoMum, 

Do  you  hold  anr  officer  ^t^f  gtHrarmnent  ? 
—I  am  surveyor  of  tiM^fflr.t)i«  thiWI  diatiiet  of 
Ayrshire. 

Do  you  hold  any  military;  eeiminisaioD  ?-*-( 
ifraa  in  thei  Volpm^erp  till  1609,  %iid  Istill  hold 
^ooromi^sion  m^  I^o^al  HtliUtia. 

I  need  hardly  ask  you  if  y^  eve  a  Mm  re^ 
fe^mer  yoursrtf fr-J  imm  9/im^^.mfmtins» 
%!  auch  purpiwHS* 

.  Yo>iare  r^tbeir.iiLiQifteriaUy  ineUn^dC  I  |W^ 
•ome.    Do  yp^,kn^vt  Ml •  JM^  ?— Y<es. 

What  app«ar«4  to*  be  hif  politieal  aei^ti- 
i|j9^8  Ff^ue  je^DMd.W  be  a.  ftieB4  tothe  cdiih 
etitution,  but  wished  a  refiuia  19  tb^  repreae»- 
t«|ion. 

He  had  no  desire  to  overturn  thoi  dOPItita* 
tian^—I  h^ve.h^aid  bii%.  wa^ly.  e;rtol  the 
oonstituticuu 

Xa  he  a  :<|^|.iiiani^Ye9»  h«  baa  beea.  ao 
ei^  ^^  I  kMiFbiqiy  and  th^t>  h  tb^  gteatM.: 
part  of  hiaiife.; 

lahe.reapfjiBtlMe  in  pfiiot  of  sHlMtioiil^ 


Htre  YOU  temd  idciig  wKk  bhn  is  ny 
eorpa  ?-^I  was  anbalteniy  and  he  was  mcaptan 
in  the  Apshire. 

Did  his  oonduoC  as  an  officer  give  satida^ 
tioo  ?— He  was  a  ^^try  active  officer. 

Do  you  know  of  a  aseeting  held  at  Kil- 
mamodL  in  Deoember  last  ?^-I  beard  of  it. 

Had  you  any  conversation  with  Mr.  Baiid 
about  it? — ^Yes,  once  or  twice.  I  beard  %. 
{gentleman  read  an  account  of  the  proceedings 
m  a  company  from  a  Glasgow  paper. 
■*  Did  you  ever  hear  Mr.  oaird  say  any  thing 
about  the  speeches  ? — I  never  heard  him  make 
any  remarks  on  them. 

Do  you  know  Mr.  M'Laren  ? — ^Yes. 

Was  he  in  that  corps  you  spoke  of? — ^Yea, 
in  my  company. 

Did  he  behave  well  ? — ^As  far  as  I  know, 
sir. 

John  Brovm  sworn. — Examined  by 
Mr.  Jeffrey, 

Are  Tou  a  writer  in  Kilmarnock  ?— Yea^ 

Have  you  a  partner  in  business  ?— Yes,  the 
town-clerk. 

Are  you  acquainted  with  Mr.  Baird?— Very 
well. 

Is  he  a  respectable  man  ? — One  of  the  most 
so  in,  the  town. 

Has  he  a  family  ? — He  is  a  widower,  vridi 
four  or  4ve  children. 

Do  you  recollect  a  meeting  in  December 
last  for  petitioning  parUament  ? — ^Yes,  I  do. 

Do  you  know  wheiher  a  oommittee  met  be- 
fore and  after  that  meeting } — I  believe  one  sat 
several  days  befoue  the  meeting. 

Were  yon  a  member  of  it  t — ^No>  nor  vras  I 
ever  at  the  meeting. 

Did  Mr.  Baiid  ever  etunmunicate  to  you 
what  was  passing?— Scarcely  a  day  passed  in 
which  we  did  not  converse  on  the  oocotrenees 
of  the  meeting ;  and  I  was  in  the  habit  of  adu 
ing  what  passed  at  the  committee. 

What  did  be  state  as  the  object  of  the  peti- 
tioners ? — ^To  prooire  a  reform  in  parliament* 

By  what  means  ?^^By  constitntional  means. 

Did  he  disavow  violence  or  other  means  ?*— 
MostdiMincftly. 

You  know  Mr.  Baird  was  at  the  pvblio 
meeting:  Did  he  give  you  any  aoeonnt  of  what 
took  place  there  ?-*Yes^he  told  me  who  spoke* 
When  the  proeecdings  were  pnUished,  I  was 
amrpcised  at  seeing  a  pacagiaph  which  I  did 
not  look  for,  and  I  told  him  it  was  a  pitjr  it 
was  there.  He  sud  he  disapproved  of  it  him- 
self, and  was  against  printing  it  at  aU^  but  thai 
a  vote  was  taken  on  the  subject  by  the  com- 
mittee, and  they  determined  to  print  it,  as  they 
didnot  wiah  i^gaibled  statcmeirt  of  the  prO' 
ceedings  to  go  before  the  public. 

Did  he  make,  obaorvations  ott  any  of  the 
other  speeches?— He  pointedly,  o^eoted  ta' 
McLaren's  speech. 

Did  he  object  to  any  of  rtbe^  oAem  ?— *He 
diaararoffed  of  one  ov.two,  n  baring  lan^ag*  > 
t»ft  treeni  and  'disHwpaetiul. 

Does  it  consist  with  your  knowMf%4bat  \^* 


4«] 


and  Thomas  Btttrd fir  Sedition, 


A.  O.  1817. 


1 50 


haa  held  comnusnoos  in  militaiy  iy>rp8  ?-^He 
commanded  a  compaDj  of  rifle  Tojunteers  for 
'some  time. 

Did  he  give  satisfaction  in  his  military  ca- 
pacity ? — ^I  Defer  heard  any  complaint  against 
nim.  I  always  conceived  he  behaved  like  a 
gentleman. 

Was  he  lately  amwinted  a  commissioner  of 
police  of  the  townr— Yes,  at  last  annaal  elec-' 
tioo. 

From  what  you  know  of  him  was  he  sincere 
in  his  sentiments  in  favour  of  constitutional 
modes  of  proceeding  for  obtaining  redress  of 
grievances? — ^There  is  no  question  of  that. 
He  never  approved  of  any  other  than  constitu- 
tional modes  of  redress.  I  have  known  him 
intimately  these  eight  or  ten  years. 

Was  he  likely  to  say  or  do  any  thiog  to  pro- 
duce discontent  ? — I  conceive  he  would  be  the 
last  man  in  the  world  to  be  guilty  of  any  thing 
of  the  kind. 

Are  youderk  to  the  road 'trustees? — ^Yes. 

Did  you  understand  Mr.  Baird  objected  to 
these  expressions  not  as  being  improper  in 
themselves  but  as  likely  to  lead  the  persons 
.who  uttered  them  into  a  scrape  ? — He  did  not 
appear  to  be  apprehensive  of  any  coesequences 
to  result  from  them,  but  he  objected  to  them 
.  as  improper  expressions. 

Are  yon  acquainted  wi^  MILaren? — ^A 
little.    I  have  met  him  on  business. 

Do  yott  know  anything  of  his  character  f — ^I 
never  heard  anything  against  him. 

Ijord  AdvocaU, — Gentlemen  of  the  jury ;  you 
have  heard  from  the  indictment  th^tt  tne  panels 
are  charged  generally  in  the  major  proposition 
with  the  crime  of  sedition,  a  crime  well  known 
in  the  law  of  Scotland,  and  with  the  general 
description  of  which  you  must  be  already  fa- 
miliar, but  with  which,  at  all  events,  you  have 
had  addiuonal  means  of  being  made  acquaint- 
ed, ttcfOL  the  luminous  and  satisfactory  judg- 
ments of  their  lordships,  delivered  this  morn- 
ing in  tlie  commencement  of  ^h&trial.    I  ^hall 
not,  therefore,  in  this  part  of  the  observations 
which  it  is  incumbent  upon  me  in  discharge  of 
my  public  duty  to  adoress  to  you,  sav  any 
thing  in  further  explanation  of  the  law  of  sedi- 
tion, whidi — as  a  crime  calculated  to  unsettle 
the-order  of  society,  and  to  introduce  tumult, 
anarchy^   and  ..bloodshed  into  these  realms, 
which,  for  upwards  of  a  century  have  enjoyed 
the  highest  oegree  of  freedom  that  ever  fell  to 
the  lot  of  any  people-r-is  one  of  the  most  dan- 
.gerous  whicn  can  be  committed  against  the 
state.     Before,  however,  concluding  the  re- 
marks with  which  I  shall  have  .to  trouble  you, 
it  may  be  necessar^r  for  me  to  draw  your  atten- 
tion to  the  application  of  the  law  to  ue  charges 
prefierred  against  the  paneb.    In  ^e  fir?t  in- 
stance, however,  I  shall  confin.e  myself  exclu- 
sively to  the  evidence  which  has  been  adduced, 
in  order  to  establish  that  the  acts  at  least,  a1- 
.  leged  in  the  indictment  to  have  been  committed 
.  by  the  prisoners,  have  been  brought  home  to 
.tibem. 

VOL.  xxxin. 


Tou  will  observe,  then,  that  in  the  minor 
proposition  of  the  iiidietment,  the  prisoileri 
are  charged — McLaren  with  having,  at  a  public 
meeting,  on  the  7th  of  last  December,  held  in 
the  neighbourhood  of  Kilmarnock,  and  attend- 
ed principally  by  the  lower  orders  of  the  peo- 
ple, used- certain  seditious  and  inflammatory 
language,  in  a  speech  which  he  then  deliver- 
ed— a  speech  calculated  to  degrade  and 
bring  into  contempt  thef  goverment  and  legis- 
lature, to  withdraw  therefrom  the  confidence 
and  affections  of  the  people,  and  to  All  the 
realm  with  trouble  and  dissention.  For  the 
precise  expressions  which  he  then  employed,  I 
shall  beg  leave  to  refer  you  at  present  to  the 
copies  of  the  indictment  which  are  before  you, 
in  which  the  passages  of  the  speech  are  detail- 
ed at  length,  and  to  which  I  shall  hereafter 
be  obliged  more  particularly  to  call  your 
attention. 

The  other  panel,  Baird,  is  charged  with 
having  published  his  speecli,  and  with  having 
been  accessary  to  the  printing  and  circulating 
a  seditious  tract  or  statement,  purporting  to  be 
an*'  Account  of  the  proceedings  of  the  public 
meeting  of  the  burgesses  and  inhabitants  of 
the  town  of  Kilmarnock,  held  on  the  7th  of 
December  1816,  for  the  purpose  of  deliberat- 
ing on  the  most  proper  method  of  remedying 
the  present  distresses  of  the  country,  with  a 
full  report  of  the  speeches  on  that  occasion." 
Then  follow  particular  passages  contained  in 
that  publication,  which  are  alleged  generally 
to  be  seditious,  tending  to  inflame  the  minds 
of  the  public  against  the  constitution  of  the 
kingdom,  and  which,  it  is  affirmed,  were  pub- 
lished by  him  with  the  wicked  and  felonious 
purpose  of  exciting  sedition  against  the  Go- 
vernment, and  of  withdrawing"  the  affections 
of  the  people  from  the  established  order  of 
things  in  the  country.  The  publication  has 
been  duly  authenticated,  and  although  I  shall 
afterwards  more  particularly  refer  you  to  some 
of  its  most  striking  passages,  the  whole,  I  trust, 
will  receive  your  full  and  deliberate  considera- 
tion. 

In  the  conclusion  of  the  indictment  both 
prisoners  are  charged  with  being  accessaries 
to  the  crimes  committed  by  each.  From  this 
you  will  understand,  that  if,  from  a  full  consi- 
deration and  investigation  of  the  proof  which 
I  have  laid  before  you,  you  should  be  of  opin- 
ion that  the  prisoner  Baird  was  accessaiy  to 
making  the  seditious  speech  delivered  by 
M'lAren,  or  that  the  other  panel,  M'Laren,  was 
accessary  to  publishing  or  circulating  the  sedi- 
tious libel,  stated  more  particularly  to  have 
been  sent  into  the  world  by  Baird,  then  you 
.  will  have  to  ifind,  supposing  you  are  of  opinion 
that  the  speech  and  publication  are  seditious, 
that  both  are  guilty  art  and  part  of  the  crime 
laid  in  the  indictment. 

.  In  consideriug  this  part  of  the  case  as' a 
question  of  evidence,  I  do  not  think  that  it  is 
necessary  for  me  to  go  very  deeply  into  the 
import  of  the  depositions  of  the  witnesses  \  for 
I  conceive,  that  wh^le  you  are  calleil  upon  to 
E 


513 


57  GEORGE  III. 


Trial  afAUtanitr  M'Laren 


159 


discharge  a  most  important  duty,  in  declaring 
the  guilt  or  innocence  of  the  panels  as  to  the 
crimes  libelled,  and  which  may  depend  on 
considerations  altogether  unconnected  with 
the  mere  fact  of  the  deliyeiy  of  the  speech  by 
the  one,  or  the  publication  of  the  libel  by  the 
other,  you  can  have  no  difficulty  in  forming 
an  opinion,  that  both,  and  each  of  them,  at 
least,  did  commit  the  acts  which  are  charged 
against  them  in  this  indictment.  You  can 
have  no  difficulty  in  being  of  opinion,  that  it 
is  proved  that  M'Laren  did  deliver  a  speech  at 
,the  meeting,  and  that  the  speech  did  contain 
the  expressious  which  are  cited  in  thi^  indicts 
roent :  Neither,  in  my  apprehension,  can  you 
doubt,  that  the  publication  in  question  was  the 
work  of  Baird ;  that  he  not  only  superintended 
the  printing,  but  assisted  in  preparing  the 
manuscript  for  the  press;  and  that  he  sold 
and  distributed  this  libel,  prepared  under  his 
own  eye,  with  the  utmost  diligence,  indefati- 
gable zeal,  and  persevering  activity.  In  like 
manner,  I,  at  least,  cannot  see  where  a  doubt 
can  ezisty  that  it  has  been  legally  proved  that 
M'Laren  was  art  and  part  in  the  publication, 
and  that  he  is  now  bound  to  answer  for  that 
publication  which  was  thus  sent  forth  into  the 
world,  be  its  qualities  what  they  may. 

But  though  that  is  the  impression  on  my 
mind,  and  although  I  have  no  doubt  that  the 
same  has  been  made  upon  the  minds  of  all  of 
you,  it  is,  notwithstanding,  my  duty  to  go 
over  th^t  evidence,  and  to  endeavour  to  point 
your  attention  to  its  different  parts,  as  appli- 
cable to  the  charge  against  the  panels  sepa- 
rately,— distinguishing,  as  I  have  said,  the 
bare  facts  of  the  case  from  the  view  which  I 
am  afterwards  to  take  of  the  nature  and  im- 
port of  the  expressions. 

In  the  first  place,  then,  you  will  attend  to 
the  evidence,  by  which  it  is  proved  that  the 
speech  in  question  was  actually  delivered  by 
the  prisoner  M'Laren. 

Upon  this  branch  of  the  case,  I  shall  call 
your  attention  to  the  statement  given  by  the 
prisoner  himself  in  |iis  declaration  emitted  be* 
tore  the  sheriff.  But,  before  doing  so,  it  may 
be  proper  for  me  to  state  to  you  distinctly,  that 
in  considering  this  part  of  the  evidence, 
you  must  remember,  that  nodiing  contained  in 
this  piec^  of  evidence  can  inculpate  the  oCher 
prisoner,  but  can  only  affect  the  party  by 
whom  it  was  emitted.  Neither,  I  will  fidrly 
tell  you,  is  it  to  be  taken  as  conclusive  evidence 
even  against  him.  It  is,  however,  a  very  strong 
circumstance  of  presumption  against  him, 
ioQAde,  as  it  has  been  adnutted  to  have  been  in 
this  case,  voluntarily,  while  the  prisoner  was 
sober  and  in  his  sound  senses,  deliberately 
andseriooaly.  I  shall  submit  to  you,  there* 
fore,  that  when  the  admissions  made  in  this 
declaration  axe  taken  with  the  parole  proof, 
no  doubt  can  be  left  upon  your  mind  of  the 
Mth  of  the  allegations  made  in  the  iodict- 
fnent)  in  point  of  fact^  regarding  the'  prisoner 
H^Laren. 

In  the  first  place,  then,  the  declaration  of 


M'Laren  states, ''that  there  was  apnbUc  meet« 
ing  held  at  the  Dean-park,  near  Kilmarnock, 
on  the  7th  of  December  last :  that  that  meeting 
was  for  the  purpose  of  petitioning  parliament 
for  a  reform  of  grievances.  Declares,  that 
previous  to  that  meeting  there  was  a  commit- 
tee of  certain  individuals  in  Kilmarnock  for 
the  purpose  of  bringing  about  the  said  meet- 
ing: tnat  the  declarant  attended  that  com- 
mittee, and  David  Ramsay  Andrews,  writer 
in  Kihmumock,  Thomas  &ird  and  Andrew 
Finnie,  merchants  there,  also  attended  that 
meeting :  and  the  declarant  has  reason  to  sup- 
pose that  they  were  members  of  it  as  well  as 
himself.  Declares,  that  the  declarant  first  ap- 
peared on  the  hustings,  and  opened  the 
meeting ;  and  being  shown  an  *  Accocnt  of 
the  proceedings  of  the  public  meeting  of  the 
burgesses  and  inhabitants  of  the  town  of 
Kilmarnock,'  and  wherein  is  engrossed  on 
part  of  the  fifth  page,  sixth,  and  part  of  the 
seventh  page,  what  the  declarant  said  at  open- 
ing the  above  meeting,  declares,  that  the  de« 
clarant  has  perased  said  speech,  and  it  is  near 
what  the  dedarant  mad  on  the  obooe  oocoiioii." 
He  next,  no  doubt,  makes  an  exception  as  to 
the  inaccuracy  of  that  speech,  ^  except  what  is 
said  about  toe  middle  of  the  seventh  page 
about  alleffiance,  which  the  declarant  thinks  he 
did  not  deliver  in  the  words  as  expressed  in  the 
publication.'' 

Tikis,  you  will  observe,  is  not  denying  the 
purport  of  the  passage  in  the  libel,  but  onlV 
the  words  in  which  £e  import  was  conveyed 
to  the  multitude,  and  we  shall  see  afterwards 
whether  the  prisoner  be  correct  in  this  part  of 
his  statement.  * 

He  next  declares, "  that  on  the  morning  of 
the  above  meeting,  the  dedarant  put  into  i&rtt- 
ing  what  he  naat  $ay  at  the  cpemn^  of  the  meet- 
ing: that  he  qfterwardt  gaoe  hs  part  of  the 
nuamtcripi  to  thote  who  were  apfomted  (y  the 
committee  to  mferintend  the  printing  of  the  pro^ 
ceesSngt,  that  the  tame  might  he  pMUhed  wmg 
with  the  rett.  Declares,  that  James  Johnstone^ 
muslin-agent  in  the  waterside  of  Kilmarnock 
was  called  to  the  chair,  and  on  that  occasion 
he  made  a  speech,  whidi  was  much  approved 
of  by  those  present.  Declares,  that  the  re$o» 
bitiontj  at  engroued  in  taid  piMcationf  are  the 
tame  that  were  reed  at  the  public  meeting,  end 
the  manmcrift  wot  read  to  the  committee  prevUme 
to  the  meetmgy  by  Tfumat  Baird,  merwmt  hit 
KilmamoAf  one  of  the  membert.  Declares,  that 
Hugh  Crawford,  printer  in  Kilmarnock,  waa 
employed  to  print  the  proceedings  of  the  meet- 
ing, which  were  afterwards  sold  at  fourpenee 
a-piece,  to  enable  the  committee  to  defray  Ate 
expenses.  Declares,  that  the  declarant  attend- _ 
ed  a  meeting  of  the  committee^  when  those' 
who  spoke  gave  ih  their  maauteripts  fSor  print* 
ing;  and  the  declarant  thinks  the  fdfesaid 
Thomas  Baird  vras  present  :^That  a  committee 
was  appointed  to  enperintend  the  printing,* 
and  the  said  Thomas  naird  and  Andrew  Fin- 
nie were  of  that  committee.  And  being  shewn 
the  printed  report  before  mentioned,  dedares 


ana  Thomas  Baird^fir  SedUicM. 


9^1 

^k^  kt  heard  mm  0f  the  mdhonfadfadt  wUh 
«iy  tkm^tlud  it  Aaron  caUmned;  and  tbe  said 

SublicatioD  is  docqueted  and  signed  by  the 
eclazant  aod  sheriff  as  relative  hereto.''  And, 
before  condiiding,  be"  declares^  that  the  words 
9D  the  sixth  page,  'the  fact  is,  we  are  ruled  by 
men  oaly  soUcitbus  for  their  own  agmndize- 
menty  and  they  care  no  farther  for  uie  great 
body  of  the  people  than  they  are  subservient 
to  their  accursea  purposes,  *  were  in  the  manu^ 
xripi  wroU  hy  the  dedanmt,  but  were  not  re- 
pe^ed  by  him  at  the  public  meeting  when  on 
the  busting  as  above." 

Now,  this  is  the  declaration  of  the  panel,  and 
it  must,  as  it  will,  be  supported  by  other  evi- 
dence, before,  as  I  have  told  you,  it  can  have 
full  authority  with  you  as  establishing  the  &ct 
j^ainst  the  prisoner.  You  will,  therefore,  ob- 
serve, that  in  this  declaration  be  admits,  gene- 
rally, that  all  the  parts  of  his  speech  as  given 
in  this  printed  paper,  are  accurate,  with  two 
exceptions. 

Ihe  first  exception  is,  that  there  is  something 
inaccurate  in  the  words  at  the  passage  regard* 
ing  allegiance ;  but  he  does  not  state,  or  allege, 
in  what  particular  these  expressions  are  inac- 
curate ;  neither  does  he  deny  that  they  convey 
the  import  of  what  he  had  delivered.  And,  no 
doubt,  there  is  an  inaccuracy  in  the  printed 
account  of  this  passage ;  because,  you  will  ob- 
serve, that  one  monosyllable,  of  very  great  im- 
port, is  cautiously  omitted,  which,  it  is  proved 
Dy  the  rest  of  the  evidence,  beyond  all  doubt, 
the  prisoner  actually  employed.  The  word 
*'  heu^  is  omitted  altogether ;  and  while  the 
prisoner  refrained  from  stating  what  words 
were  incorrectly  given,  I  shovld  be  entitled  to 
infer  that  it  consuted  in  this  omission ;  and,  if 
so,  it  is  of  no  importance  to  the  general  result. 
Indeed,  itk  enough  for  my  purpose  that  he 
admits  general^  the  accuracy  and  authenticity 
of  tbe  pubUoOion ;  because  I  have  the  means 
of  supporting  the  strong  evidence  afforded  by 
this  general  admission,  by  other  testimony 
which  supplies  whatever  is  wanting  in  his  own 
declaration. 

The  second  exception  which  he  makes  is, 
that  some  words,  which  are  mentioned  at  the 
end  of  ihe  declaration,  are  printed,  which  he 
did  not  deliver  at  the  hustings ;  but  you  wjU 
observe,  that  he  admits  that  those  words  were 
in  the  copy  of  his  speech  which  he  gave  to  be 
printed,  and  that  he  does  not  allege  that  he,  at 
any  time,  ever  objected  to  the  publisher,  or  to 
.  the  committee,  that  his  speech  as  delivered  vras 
not  accurately  given,  but,  on  the  contrary,  that 
he  acquiesced,  down  to  the  hour  of  his  emitting 
this  declaration,  in  its  being  the  true  and 
fiur  account  of  the  speech  he  had  miAe  on  that 
occasion. 

Let  us  now  attend  to  tbe  parole  proof,  by 
which  this  declaration  has  been  amply  con- 
firmed. 

Of  the  two  witnesses  who  were  first  examined, 
jotthaveFinnie.  who  swears  that  the  speech 
'  which  he  heard  McLaren  deliver  on  that  occa- 
sion contained,  these  words  t  ''We  wUl  lay/' 


A.  D.  1817. 


L&4 


or  **  let  us  lay,  our  petitions  at  the  fdot.  of  tbe 
throne,  where  sits  our  august  prince,  whose 
generous  nature  will  incline  his  ear  to  hear  the 
cries  of  his  people,  which  he  is  bound  to  do  by 
the  constitutioiud  laws  of  the  country;  and  we 
are  thereby  bound  to  give  him  our  idlegiance : 
But  if  be  should  be  so  infatuated  as  to  turn  a 
deaf  hear  to  the  eeneral  cries'*  or  ^  voice  of 
bis  people,  to  hell  with  allegiance.*'  That  is 
the  express  statement  given  by  a  person  who 
himself  attended  the  meeting  as  a  party,  who 
cannot  be  supposed  to  be  very  unfavourable  to 
the  prisoners, and  whose  testimony,  indeed,  was 
given  in  a  way  that  must  satisfy  your  minds  he 
did  not  intend  to  press  the  case  mor«  than  it 
would  bear  against  either  of  them. 

Next  we  have  tbe  witness  Merrie,  whT>  ex>- 
pressly  swears  (though  his  memory  is  not  dis- 
tinct as  to  the  whole  passage),  that  McLaren 
made  the  first  speech.  He  remembers  the 
words  **  to  hell  with"  or  "  for  such  alle- 
giance.'' He  says  M'Laren  ''  wished  the 
people  to  address  their .  augnst  sovereign,  and 
he  meant  their  allegiance  to  him.**  Then  he  re- 
members the  words,  '*  if  he  turned  a  deaf  ear 
to  the  voice  of  his  people  ;^'  and  after  that  came 
the  words  **  to  hell  with  allegiance." 

Besides  the  testimonies  I  have  now  referred 
you  to,  I  might,  if  it  were  necessary,  go  over 
the  evidence  of  many  more  of  tbe  witnesses ; 
but  this  must  be  superfluous.  You  will,  how*' 
ever,  keep  in  remembrance  the  evidence  of 
Samson,  who,  when  called  back  and  examined 
for  the  prisoners,  deposed,  that  be  attended  the 
meeting  of  the  committee  when  the  speeches 
were  given  in  for  publieation  'by  the  aifferent 
persons  by  whom  they  had  been  delivered  at 
the  public  meeting ;  that  M'Laren  was  present 
at  tnat  meeting  of  the  committee,  and  that 
when  be  produced  his  manuscript,  there  was  a 
correction  made  on  it  by  Batrd,  which  was 
read  to  the  meeting;  and  that  the  pencils 
marking  made  by  Baird  were  those  Very  words 
I  have  referred  to  which  are  given  in  this 
speech,  and  copied  into  the  indictment  which 
is  l^ng  before  vou.  He  states,  that  the  words 
which  were  added  by  Baird  with  the  pencil 
are,  ^  which  he  is  bound  to  do  by  the  laws  of 
tbe  country :  But  should  be  be  so  infatuated 
as  to  turn  a  deaf  ear  to  their  just  petition,  he 
has  forfeited  their  allegiance.  Yes,  my  fellow 
countrymen,  in  such  a  case  to  hell  with  our 
allegiance."  These  are  the  words  which  with 
a  pencil  Baird  added  to  M'Laren*s  speech  in 
his  own  presence.  Now  why,  I  will  ask,  ac- 
cording to  the  prisoner^  own  friend  Mr. 
Samson,  were  they  added }  Why,  because  tbe 
committee  wished  to  give  a  true  account  of 
what  took  place  at  tbe  meeting,  or,  to  use  his 
own  words,  **  because  tbe  manuscript  delivered 
in  was  not  complete  according  to  tbe  way  in 
which  the  speech  was  delivered.*'  The  com-' 
mittee  did  not  wish  to  garble  the  proceedings, 
but  to  give  i^minnte,  true  and  accurate  account 
of  what  happened ;  and  the  passage  therefore 
was  inserted.  All  this,  you  will  remember, 
took  place  in  McLaren's  presence ;  and  did  he 


55] 


57  GEORGE  III. 


Trial  ofAkxander  M*Laren 


LS6- 


object  to  this  .addition  being  made?  No;  on 
the  contraiy,  he  agreed  that  the  passage  should 
remain  there,  because  it  was  an  accurate  account 
of  what  he  had  said*  Some  feeling  of  pro- 
priety, no  doubt^  prevented  the  committee  from 
putting  in  one  word  which  had  been  used  by 
M'Laren,  and  there  is  a  blank  accordingly  in 
the  printed  paper;  but  the  witnesses  who 
were  examined  fill  up  the  word,  and  tell  you 
what  is  wanting.  You  have  McLaren's  ad- 
mission, therefore,  in  his  declaration,  of  the 
general  accuracy  of  the  printed  account  of 
hia  speech;  you  have  the  parole  proof; 
you  have  this  statement  of  Samson's;  and 
you  have  M'Laren*s  virtual  admission  in  the 
committee,  that  these  were  the  expressions  he 
used.  It  does,  therefore,  appear  to  me  to  be 
unnecessary  to  go  further  in  examining  evidence 
on  this  part  of  the  subject.  I  think  it  is  clear 
that  these  words  were  used  by  M'Laren,  and 
that  of  this  it  is  impossible  you  should  doubt. 
I  may  now,  then,  put  the  prisoner  McLaren 
aside  altogether,  in  so  far  as  the  mere  fact  of 
the  speech  having  been  delivered  by  him  is 
concerned ;  and  it  is  exclusively  to  that  I  am 
speaking  at  present; 

As  to  the  prisoner  Baird,  we  must  also  look 
to  the  terms  of  his  declaration.    He  declares, 
*'  ihat  the  7th  of  December  last  was  fixed  for  a 
general  meeting  at  the  Dean-park :    That  ^e 
declarant  attended  that  meeting,  and  Alexander ' 
M'Laren,  weaver  in  Kilmarnock,  mounted  the 
l!iustlnffs,aQd  opened  the  meeting  vrith  a  speech : 
That  James  Johnstone,  muslin-agent  in  Kil- 
marnock, was  called  to  the  chair,  and  read  a 
speech  to  the  meeting  from  a  memorandum- 
book.    And  being  shewn  a  manuscript  con- 
sisting of  nineteen  pa^es,  declares.  That  he  is 
pretty  certain  that  it  is  the  same  that  he  read 
to  the  meeting,  and  which  the  declarant  saw 
some  days  afterwards  in  Walter  Andrew's  ofiibe, 
and  which  is  docqueted  and  signed  as  relative 
hereto.    Declares,    'fhat  the  proceedingi  were 
ordered  to  be  printedy  and  the  dedarant  wot  ap- 
pointed by  the  committee^  along  with  $everal  othen, 
to  gji^permtend  the  printing :     That  the  dedaramt 
atmted  in  correcting  the  grammatical  erron  in  the 
mdnuscriptf  along  with  the  said  Walter  Andrew, 
and  the  declarant  assisted  a  little  at  the  printing 
office  in  correcting  the  proof-copy :    And  being 
shewn  a  half-sheet  of  paper,  titled  on  the  back, 
**  No.  5,  Mr.  Burt's  letter,"  declares,  That  said 
words  are  of  the  decIarant^s  hand-writing,  and 
the  said  half-sheet  of  paper  was  given  in  by 
the  declarant  to  the  printer,  along  with  the  rest 
<>f  the  manuscripts,  and  said  half-sheet  of  paper 
is  docqueted  and  signed  by  the  declarant  and 
sherifl*-substitute  as  relative  hereto.    Declares, 
That  the  proceedings  of  said  meeting  were 
printed  by  Hugh  Crawford,  and  a  great  number 
of  copies  were  tent  to  the  dedarant't  thop,andke 
retaikd  them  at  4d.  a  piepeJ* 

The  result  of  this  declaration  seems  to  be, 
that  the  prisoner  admits  that  he  was  one  of  ^he 
compaittee  appointed  to.  superintend  the  pub- 
lioation  complaioedof— iha^he  assisted  in  cor- 
recting die  manuscript  to'Sft  it  for  going  to  the 


printing-house — that  he  did  superintend  the. 
printing  of  it,  assisting  even  in  correcting  the 
press,  and  that  a  great  number  of  copies 
were  sent  to  his  shop  which  he  retailed  and 
distributed. 

Accordingly  this  admission,  vrhich,  I  hare 
said,  is,  in  point  of  law,  a  strong  circumstance 
of  evidence  against  the  prisoner,  is  amply  con- 
firmed by  the  depositions  of  the  witnesses,  by 
several  of  whom  it  has  been  proved  that  he  at- 
tended the  meeting  upon  the  7th  of  December, 
and  that  he  heard  tne  speeches' contained  in 
this  publication  delivered  or  read  by  the  per- 
sons to  whom  they  are  attributed.  By  others 
it  has  been  proved,  that  he  was  one  of  the  com- 
mittee appointed  to  superintend  the  pubtica^ 
tion ;  and  by  one  of  that  committee  it  is  estab- 
lished, that  m  the  matter  of  publication  he  took 
a  most  active  concern,  perusing  at  least  the 
manuscript  of  some  of  the  speeches  as  they 
wete  given  in  by  the  authors  or  reputed 
authors;  and  tliat  such  was  his  vigilance, 
in  providing  that  none  of  the  precious 
matter  which  had  come  before  the  public 
meeting  should  be  lost,  that  the  passage 
which  is  chiefly  complained  of  in  the  first 
charge  against  M'Laren,  having  been  omitted 
in  the  manuscript,  he  himself  took  his  pencil, 
and,  for  the  edincation  of  the  public,  to  whom 
the  pamphlet  viras  addressed,  actually  wrote  it 
down  on  the  press  copy. 

In  like  manner,  you  have  it  proved  by 
Murray,  Mr.  Crawford's  journeyman,  that 
Baird  attended  at  the  office  during  the  time 
the  publication  was  printing — ^that  he  examined 
the  first  proof,  and  suggested  at  least  one,  it 
not  more  corrections. 

Again,  as  to  the  fact  of  pubUcatioii,  it  is 
proved  by  the  prisoner's  shop-boy,  aikd  by  the 
vritness  who  bought  a  copy  at  his  shop,  as  also 
by  one  of  the  members  of  the  committee 
appointed  to  superintend t  he  publication,  and 
who  delivered  great  numbers  of  the  pamphlet 
for  the  purpose  of  being  sold  and  distributed, 
that  Baird  was  the  principal  hand  by  whom 
this  publication,  be  its  ments  or  demerits  whait 
they  may,  was  sent  out  upon  the  world. 

When  you  consider  this  body  of  evidence, 
therefore,  I  cannot  entertain  a  doubt  that  you 
must  be  clear  that  the  fact  of  the  publication 
by  Baird  is  incontrovertibly  established. 

Upon  this  part  of  the  question,  therefore, 
I  have  only  furlhet  to  remark,  that  there  can 
be  as  little  ground  for  doubting,  that  the  pri- 
soner M'Ls^n,  besides  being  bound  to  answer 
for  delivering  the  speech,  whidi  in  this  indict- 
ment is  charged  with  having  been  seditious, 
must  also  answer  for  being  an  accessary  to 
printing  and  publishing  the  pamphlet  upon  the 
table.  The  facts  of  his  having  given  in  the 
manuscript  copy  of  his  own  roeech  fi)r  the 
purpose  of  being  published,  ana  that  he  was  m 
nember  of  the  committee  of  publicatioQ — facts 
which  are  proved  beyond  all  contradiction  by 
the  witnesses  io  whom  I  have  already  refetree, 
as  virfll  as  by  his  own  admission — can  leave  no 
manner  of  doubt  upon  this  subject. 


5T3 


and  Thmat  Bmrifor  Sediiion. 


JLJX  mi. 


[Aft 


I  Kp^frAaoAf  iher^any  that  yon  mitt  now  t 
concur  with  me  in  bolding  it  to  be  ettablished  [ 
by  the  proof,  1sl»  That  McLaren  detirered  at  I 
the  jmbUc  meetiog  that  speech,  of  which  parts 
are  quoted  in  the  indictment ;  2ndly,  That  the 
puMication  porportinf  to  be  **  Account  of  the 
proeeedings  of  the  public  meeting  of  the  Bur- 
gesses and  Inhabitants  of  the  Town  of  KiU 
maiuock,  held  on  the  7tb  of  December  1816" 
&e.  was  printed  and  published  by  the  prisoner 
l^iidy  who  was  active  in  its  sale  and  aistribn- 
tion ;  and,  drdly.  That  the  prisoner  McLaren 
was  also  an  accessary  to  the  fact  of  pnblica* 
tion. 

Upon  this  part  df  tfie  case,  therefore,  which 
mnst  in  fact  form  the  foundation  of  the  opinion 
which  yon  aie  to  make  up,  and  of  the  verdict 
yon  are  to  retnm,  there  neithercan  be  any  groond 
of  difference  between  my  friends  on  the  oppo* 
site  side  of  the  bar  and  myself,  nor,  I  am  con- 
fident, can  there  be  a  vestige  of  doubt  in  your 
minds. 

But  that  part  of  the  case  which  requires 
yonr  utmost  deliberation  still  remains  to  be 
considered.  In  the  commencement  of  the  trial 
you  heard  an  admission  upon  my  part,  that  it 
would  be  competent  for  the  prisoners,  not  only 
to  dispute  the  truth  of  the  facts  charged  in  the 
indibonent,  but  to  plead  to  you,  that  suppos- 
ing those  &cts  were  brought  home  to  both  of 
them,  the  speech  and  publication  in  question 
did  not  amount  to  the  crime  of  sedition.  To 
that  admissiott  I  still  most  heartily  adhere.  It 
has  always  been  in  this  country,  and  I  trust 
always  will  be,  the  province  of  the  jury,  in 
every  question  of  this  description,  to  6nd  in 
Aeir  verdict,  whetherthere  was  a  criminal  iiiten<» 
tioo  entertained  by  the  prisoneis-^whetber  a 
crime  has  been  committed  or  not—and  whether 
that  crime  amounta  to  sedition. 

In  order  to  enable  you,  therefore,  to  make 
up  your  opinions  upon  this  subject,  had  it  not 
been  for  tne  deliberate  judgments  of  the  Court 
which  you  had  an  opportunity  of  hearing  at  the  | 
commencement  of  the  trial,  it  might  have  been 
expected  of  me  to  enter  into  some  details  of 
the  history  and  of  the  nature  of  this  offence, — 
one  of  the  most  various  and  comprehensive, 
and  at  the  same  time  one  of  the  most  danserous 
and  flagitious  known  to  the  law  of  Scotland.  But 
as  you  heard  the  unanimous  opinion  of  their 
lordships,  that  the  allegations  contained  in  this 
indictment,  if  established  against  the  prisoners, 
would  amount  to  the  crime  of  sedition,  I  shall 
confine  myself  to  such  a  statement  of  ihe  sub- 
ject as  is  barely  requisite  for  enabling  you  to 
Mlow  the  oondusions  which  I  find  it  mj  duty 
to  draw  from  the  particttlar  passages  m  this 
publication  urtuch  1  have  been  called  upon  to 
bring  under  your  eoneidemtion. 

Seditiim,  Gentlemen^  is  a  crime  by  the  com- 
monkw  of  Scotland;  and  it  has  been  laid 
down  by  our  writers,  and  by  Ihe  decisions  ef 
this  court,  that  it  readies- to  practices  ;of  every 
description,  whether  by  deed>  word,  orwiitinR, 
which^tfecaSeulatedand'iBMnded  to  distuA) 
the  Iranquilli^  trf  the  state,  by  exciting  disaf* 


footionlD  the  ttindfrof  the  people  against  the 
established  government  of  the  country,  to  pro- 
duce resistance  to  its  authority,  or  to  lead  to 
its  ultimate  subversioo.  - 

Allow  me,  however,  to  guard  myself  against 
misconstruction  as  to  the  use  of  the  terms, 
**  the  established  Government,''  which  I  have 
now  em]d(^ed.  By  those  terms,  you  will  not 
by  any  means  uhderstand  that  I  refjer  to  that 
which,  in  ordinary  parianoe,  is  commonly  so 
termed,  I  mean  his  majnty's  nunisten.  You 
need  not  be  told  that  it  is  competent  and  law- 
fed  for  the  subjects  of  this  realm  to  canyass  all 
the  measures  of  his  majesty's  ministers,— ^o 
state  that  they  are  contrary  to  law,  and  to  the 
interests  of  the  country ; — ^that  their  prooaed* 
ings  should  be  interrupted,  and  the  autliors  of 
them  dismissed  from  office :  in  talking,  thsire* 
fore,  of  raising  disaffection  to  his  majesty's 
government,  you  will  understand  that  I  do  not 
mean  exciting  disaffection  to  his  majesty's  m^ 
nisters.  Far  be  it  from  me  to  contend  th«t 
this  is  against  law,  or  that  courts  of  law  ought 
to  interfere  to  punish  practices,  words,,  or  writ*^ 
ings,  calculated  to  produce  that  effect.  Bot 
by  the  established  government,  I  mean  the 
constittttion  of  King,  Lords,  and  Commons,  as 
established  at  the  period  of  the  glorious  Revo* 
kition  of  1688 ;  and,  in  this  sense  of  the  term^ 
I  state  to  you,  that  any  thing  which  tmds  to 
produce  public  trouble  or  commotion,*— any 
thing  which  moves  his  msjesty's  snlgects  to  the 
dislike,  subversion,  or  distuibaace  of  hu  ma» 
jesty's  government,  amounts  to  the  crime  of 
sedition.  Any  speech  or  writing  that  is  calott* 
hued,  and  intended  to  vilify  and  traduce  Um 
sovereign  in  his  capacity  of  Head  of  the  State^ 
or  aa  a  branch  of  the  legislature— any  speech  or 
writing  calculated  and  intended  to  vilify  and 
traduce  the  House  of  Peers^^ny  speech  o 
writing  calculated  and  intended  to  vilify  th( 
House  of  Commons,  stating,  for  instanee,  that 
it  is  not  the  House  of  Commons,  that  it  is 
the  mere  nominal  and  pretended  repre^ 
sentative  of  the  people,  and  does  not  repre« 
sent  them, — ^tbat  it  has  become  corrupt;-** 
writings  or  speeches  inculcating  all,  or  any  of 
those  things,  fall  under  the  crime  of  sedinon. 
In  like  manner,  either  a  speech  Or  a  writing 
exhorting  the  people  to  throw  off  their  allegi- 
ance, under  any  particular  contingency  which 
may  arise  from  any  one  branch  of  the  Isgislap- 
ture  either  doing  an  act,  or  refusing  to  do  an 
act,  which  may,  or  may  not  be  within  its  par- 
ticular competency,  will  amount  to  the  crane 
of  sedition. 

Allow  me,  also,  to  observe  to  you,  that  in 
all  cases  of  this  description,  the  time  when  the 
particular  act  complained  of  is  committed,  the 
state  of  public  ofttiiion,  and  the  political  rein* 
tsons  of  the  country,  internal  or  external,  wiU 
often  be  essential  to  the  constitutidn  of  the  of* 
fence.  For  instance,  to  use  am  illustration  that 
I  believe  was  given  by  an  eminent  person,  who, 
in  the  year  1795,  held  t])e  situation  which  my 

I' -honourable  friend  near  me  now  holds.    Had, 
in  the  year  1745,  any  niunberof  iadiriduaa^ 


89] 


57  GEORGE  UI. 


qfAlumiitr.  htJLttttn 


i90 


lKvw^T«r  fewy  with  whke  OM^ato  id  tMr 
faats^  tnd  moflkets  Id  their  huids,  repiired  to 
ili6  Castle-hill,  ahovtiDg  out  the  name  of  the 
Pretender^  they  would  have  heen  guilty  da 
trime  probably  not  fhort  of  the  highest  that 
could  be  committed  against  the  state;  but  were 
the  same  act  to  be  done  new,  they  could  be 
legaided  in  no  other  light  tluun  as  madmen. 
Various  other  illustrations  of  a  similar  nature 
might  be  sUted,  but  I  deem  it  sufficient  for  me 
Co  submit  to  you  generallyy  as  being  dear  law, 
that  if  at  any  time  publications  or  speeches 
are  oompkined  of  as  seditious,  it  will  always 
be  of  im]>ortance  to  consider  the  state  of  ^e 
public  mind  at  the  period  the  act  alleged  tp 
constitute  the  prime  has  been  committed,  in 
Older  duly  to  appreciate  their  nature  and  im* 
port  With  this  view,  and  before  concluding, 
It  will  be  my  province  to  submit  to  you,  in  a 
sinsle  sentence,  that  the  state  of  the  country 
«t  me  time  when  this  publication  issued  from 
the  press,  and  when  the  spcm^  was  dehrerad 
by  McLaren  at  the  public  meeting,  must  enter 
deeply  into  your  consideration  in  forming  your 
veraict  upon  this  indictment. 

Upon  this  subject  I  have  only  farther  to  state 
that  the  crime  of  sedition  is  one  ¥rhidi  tUs 
court,  and  the  law  of  this  country,  has  viewed 
as  one  of  the  hi|^est  and  most  flaoitious  de« 
scription.  Its  object  is  to  introduce  dissention, 
trouVlesy  and  bloodshed  into  the  kingdom, — 
to  subvert  the  laws,  and  to  dissolve  the  bonds 
of  society.  It  is  the  duty  of  government,  therfr- 
fore,  to  resist  and  extinguish  it  in  ihe  veiy  outset ; 
and  if,  in  the  present  instance,  I  have  any 
thing  to  regret,  it  is  that  this,  and  perhaps 
other  cases  of  a  similar  description,  have  not 
been  brought  sooner  before  a  Jury  of  the 
conntry. 

We  come  now  to  consider  whether  the  terms 
of  the  speech,  ts  deliversd  at  the  meeting  by 
McLaren,  or  the  terms  of  that  speech  and  of 
the  other  speeches  in  the  publication  after- 
wards given  to  the  worid  by  the  prisoneis, 
amount  to  the  dme  of  sedition,  according  to  the 
description  of  that  offence  which  I  have  now 
had  the  honour  of  giving  you. 

And  first,  as  to  the  speech.  In  it  you  will 
recollect,  that  McLaren  stated,  **  That  our  su^ 
feringsare  insupportable  is  demonstrated  to 
the  world;  and  tnat  they  are  neither  tempo- 
rary, nor  occasioned  by  a  transition  from ''  war 
to  peace,"  is  palpable  to  all,  though  all  have 
not  the  courage  to  avow  it.  The  &ct  is,  we 
are  mled  by  men  only  solicitous  for  their  own 
aggrandizement,  and  they  care  no  furtiber  for 
the  great  body  of  the  people  than  Uiey  are  sub- 
servient to  tlieir  aceuised  purposes.^ 
•  In  this  passage  the  term  rulers,  you  will  ob- 
serve, is  employed;  and  this,  it  may  be  said, 
applies  to  his  majesty's  ministers,  and  notto  the 
^vemment  in  the  more  comprehensive  mean- 
ing of  the  phrase;  but  it  does  no  such. thing. 
There  is  no  limitation,  you  will  remark,  intro- 
duced by  the  speaker.  Even  taking  the  term 
generally,  and  in  its  extensive  sense,  undoqht- 
,cdly  it  oompieheads  ^e  wliole  order  of  our 


Omremon^  -^King»  Loidi  and  Covunons :  but 
in  an  afiier  part  of  the  speech^  it  is  explained 
that  this  last  is  actuallj^  the  sense  in  which  it 
was  employed,  llie  statement  therefore  is, 
that  the  King,  Lords  and  Commons,  are  cor- 
rupt;—that  they  are  solicitous  only  for  their 
oWn  aggrandizement ;  that  they  care  no  further 
for  the  body  of  the  people,  than  as  th^  are 
subservient  to  their  accursed  purposes.  Now, 
I  ttk,  is  not  this  statement  calcniated  to  bring 
the  government  into  contempt,  and  to  excite 
disaffection  to  the  established  order  of  things  ? 
Does  it  not  tell  the  people,  that  they  have  no 
interest  whatever  in  the  stability  of  the  state; 
and  is  it  not  odculated  immediately  to  lead  to 
disturbance  and  commotion?  It  is  for  you, 
gentlemen,  to  answer  the  question,  and  it  seems 
to  me  impossible  to  doubt  that  that  answer 
must  be  in  the  affiimative. 

But  In  this  passage  allusion  ia  made  to  the 
distresses  of  the  people,  and  these  are  made 
the  instrument  for  giving  greater  effect  to  this 
seditious  libel  upon  the  rulers  of  the  country. 
This^you  cannot  doubt,  enhances  the  crime  of 
the  prisoner,  by  having  employed  that  under 
which  his  hearers  were  suffering,  and  which  ho 
must  have  known  their  rulers  could  not  re- 
move, as  an  engine  for  promoting  the  disaffec* 
tion  he  was  endeavouring  to  excite.  God 
knows,  that  I  by  no  means  wish  to  under-rsite 
the  distresses  .which  the  persons  attending  that 
meeting  were  labouring  under  in  common  with 
their  brethem  in  different  parts  of  the  coun* 
trv*  No  one  who  was  at  that  meeting,  no  one 
who  hears  me  now,  can  be  more  sensible  of 
the  great  distress  which  the  lower  ranks  in  this 
country  have  suffered,  and  none  can  more 
deeply  deplore  it  than  I  do.  While,  however, 
I  folly  appreciate  the  extent  of  those  distresses, 
and  applaud  the  patience  with  which  they 
have  been  endured,  I  can  only  urge  the  use 
which  is  made  of  them  in  the  passage  I  hare 
read,  as  tending  to  prove  the  wicked  and  mar 
lidous  intention  of  the  prisoners,  who  could 
have  had  no  other  object  in  referring  to  them 
tnan  to  excite  disaffection  and  sedition* 

The  prisoner's  speech  then  goes  on  to  states 
''If  you  are  convinced  of  this,  my  country- 
men, I  would  therefore  put  the  question,  Are 
you  degenerate  enough  to  bear  it  t  Shall  we, 
whose  forefiithers  set  limits  to  the  all-grasping 
power  of  Rome ;  Shall  we,  whose  forefathers, 
at  the  never-to-be-forgotten  field  of  BannodL- 
bum,  toki  the  mighty  Edward,  at  the  head  of 
the  most  mighty  army  ever  trode  on  Britain's 
soil,  'Hitherto  shalt  thou  come  and  no  fur^ 
ther;' — Shall  we,  I  say,  whose  forefathers  de« 
fied  the  efforts  of  foreign  tyranny  to  enslave 
our  beloved  countryy  meanly  permit,  in  our 
day,  without  a  murmur,  a  base  Oligarchy  to 
feed  their  filthy  vermin  on  our  vitals,  and  rule 
us  u  they  will  7" 

«  Upon  this  passage  I  shall  merely  say,  that 
you  have  heard  the  only  comment  which  I 
think  it  can  foiriy  admit  o^  put  upon  4t  in  the 
judgment  of  one  of  their  lordships*  in  the 

- ,      -■    - '  -^  ^  .  — « -. 

*  loid  Reston;  ^ds^  mUj  p.  16.  • 


6U 


lui  flkmat  Bamtjor  SeikioM. 


A.  D.  ItlT. 


[ds 


eaily  port  of  this  tml,  *  Ton  most  be  satisfied 
thai  the  object  of  the  orator  here  it,  to  reoom- 
mend  resistance,  and  to  encourage  it  by  calling 
to  the  leootiection  of  his  hearers  the  popular 
allusion  to  the  batde  of  Bannockbum:  Ac- 
cordingly he  goes  on  to  state  that  which  must 
leaTc  Jl  donbt  of  his  intention  in  this  passage 
out  of  the  question,  ^  Let  us  laj  our  petitions 
at  the  foot  of  the  Throne,  where  sits  our  ao- 

r  Prince,  whose  gracious  nature  will  incline 
ear  to  listen  to  the  cries  of  his  people, 
which  he  is  bound  to  do  by  the  laws  of  the 
country.  But  should  he  be  so  infiituated  as 
to  turn  a  deaf  ear  to  their  just  petition,  he  has 
forfeited  their  allegiance.  Yes,  my  fellow 
townsmen,  in  such  a  case,  to  hell  with  our 
allegiance.^ 

In  Older  felly  to  understand  the  seditious 
import  of  this  passage,  it  must  be  taken  in 
connection  with  that  which  I  previously  com- 
mented on,  and  a  passage  in  the  resolutions 
of  die  meeting,  which  I  am  fairly  entitled, 
under  all  the  circumstanees  of  the  case,  to 
tabs  as  part  of  McLaren's  speech.    In  page 
36  of  &e  publication,  it  is  stated,   ^Bemg 
therefore  impressed  with  the  truth  of  these  re- 
solutions, the  meeting  resolve  to  present  peti- 
tions to  his  Royal  Hif^ness  the  Pnnoe  Regent, 
and  to  both  Houses  of  Parliament,  requesting 
his  Royal  Highness,  in  particular,  to  assemble 
Pariiament  without  delay ;  to  call  upon  it  im* 
mediatdy  to  adopt  such  measures  as  mav  tend 
to  restore  to  the  people  their  undoubted  right 
in  the  representation ;  to  order,  in  the  name 
of  the  people,  an  immediate  reduction  of  the 
taxes,  and  the  standing  amy,^*  the  abolition  of 
all  unmerited  pensions,  sinecures,  grants,  and 
other  emoluments,  as  the  surest  way  of  esta- 
bfishing,  on  a  firm  and  lasting  basis,  the  rights 
of  the  Crown,  and  the  privileges  of  the  peo- 
ple :    And  that,  in  all  time  coming,  no  person 
who  has  an  office  or  place  of  profit  unaer  the, 
ISiogf  ^  receives  a  pension  from  the  Crown, 
shall  be  capiMe  of  serving  as  a  member  of 
die  House  ca  C<»nmoos." 

Now,  the  meaning  of  all  this  taken  toother 
is,  that  unless  the  Prince  Re^^t  shall  carder 
the  Pariiament  to  reduce  the  taxes  |nd  the 
standing  army,  and  to  do  all  the  tnings 
which  are  there  enumerated,  he  has  forfeited 
our  allegiance,  and  that  the  allegiance  of  the 
meeting  is  to  be  thrown  oif,  and  to  be  sent  to 
hdl.  fiat,  you  are  not  to  be  told  that  the 
Prince  Regent  hasno  such  power  that — 

Mr.  Clerk, — ^That  is  not  the  meaning  of  the 


r.— If  my  interpretation  of  the 
pamage  is  wrong,  my  leamed'ftiends  will  after- 
wards hatve  the  meant  of  correcting  me.  It 
would  be  better  if  at  piesent  th^  would  re- 
frain from  intemipting  me.  In  n^  view,  it 
deariy  impofts  the  meaning  wfaidi  I  have  du% 
upon  it.  The  Prince  Regent  is  to  amemVle 
me  FMament,  and  to  call  upon  it  to  leitora 
fo  the  people  tifcir  n^gbt  of  repnseatation; 
b«t^  in  the  seeond  place,  he  is  to  order  aU  the 


otfier  things  to  be  done  by  the  IMisnen^ 
which  it  is  not  within  his  oooapetence  to  do,  , 
or  he  is  to  order  them  to  be  done  of  his  owik 
authority;  and  if  he  does  not  do  so^  then  what 
is  the  penalty  ?  No  less  than  the  forfeiture  of 
our  allegiance,  and,  as  he  says,  ^in  that  ease, 
to  hell  with  our  allegiance.'^  Here,  then,  Oea- 
tlemen,  the  miseraUe  and  distrMsed  people,  - 
goaded  by  their  privations  and  afilictiona,  who 
were  surrounding  the  prisoner,  were  in  this 
speech  excited  to  make  demmids  upon  the 
Sovereiffu  and  the  Legislature,  iHiich,  if  they 
were  renised,no  less  a  result  was  to  fellow  than 
the  forfeiture  and  throwing  oif  of  their  atte* 
giance. 

Now  all  this  I  state  to  yon  to  infer  the  crime 
of  sedition.    It  was  sedition  to  alienate  the 
afihctions  of  the  people  from  the  Government, 
in  the  manner  which  was /done  in  the  first  part 
of  tho  speedi.    It  was  sedition  to  tell  the 
meeting,  in  the  second  part  of  it,  that  if  the 
diffsrent  reforms  there  called  for  were  net 
granted,  and  if  the  evils  complained  of  were 
not  removed,  their  allegiance  was  forfeited,  and 
to  exhort  them  in  sodk  a  case  to  throw  it  of. 
The  next  point  for  consideration  is  the  pub- 
lieation  itself.    But  here  I  am  saved  repeating 
the  commentary  upon  one  part  of  that  pro- 
duction, the  speech  of  Mlaren;  fer  it  must 
be  manifest  to  you,  that  if  the  speech  when 
delivered  was  seditions,  it  cannot  be  less  so 
when  reduced  into  the  form  of  a  publication ; 
and  every  tfaing^,  with  one  exception,  which 
wu  ddivered  vha  voce,  is  to  be  found  in  the 
printed  report.    There  is  a  blank  before  alle- 
gianeey-~the  word  ^keW  is  left  out.     It  is 
your  province^  however,  to  fill  up  that  blank. 
And,  after  the  evidence  laid  before  you  this  ' 
dajr,  you  oan  have  no  difficultv  upon  this 
point.    You  heard  that  one  of  the  prisoneii, 
in  the  presence  of  the  other,  wrote  out  the 
vrhole-  of  the  passage  upon  the  manuscript 
when  preparing  Uf  or  the  press.    The  propria^ 
of  inserting  the  passage  wu  afterwaids  die- 
cussed,  and  doubts  were  entertained  upon  the 
subject  by  the  committee.    With  the  feet  of 
that  passaae  beingaotnally  in  the  hand-writtns 
of  Baird,  looking  him  in  the  fruie,  my  learned 
finend  (Mr.  Grant),  rather  strangely  in  my  op»- 
nion,  pressed  upon  his  witnesses  to  prove  that 
Baird,  in  particular,  was  awave  of  the  indeoeney 
of  its  character;  for,  under  such  circumslaiices» 
the  fact  of  pubUottion  only  made   his  o^ 
fence  the*  greater.    Aecoffdiai^y,  it  is  proved  , 
to  you^^iat  the  prisoner,  whether  convinced  of 
its  indeoency-or  not,  still  he^  the  publisher  and 
coneotorof  the  press,  sends  it  to  be  printed; 
and  out  it  eomes  with  the  word  only  left  blanky 
affinding,!  should  think.  Id  your  oonvictioB, 
the  fellMt  and  most  complete  evidence  of  his 
guilt 

But  let  us  proceed  Id  ooosider  the  other 
parts  ti  the  publication.  In  pa^e  3,  of  the 
mdietmant  there  is  this  passage :  **  But  let  us 
cone  nearer  home:  look  at  the  year  t79l» 
when  the  debt  amounted  to  two  hundred  and 
fkifm  nHlionB,  and  the  annual  taxation  to 


631 


£7  GEOBQE  m. 


Trid  i^jU$iMmdvr  M'Laam 


m 


abcml  MgbtMii  mUiaiii;  mhea  liberty  began 
to  rear  her  dioopine  head  in  the  eountry ;  when 
asaooiatiooa  were  rormed  from  one  end  of  the 
kingdom  to  another,  oompoeed  of  men  eminent 
for  their  talents  and  virtne,  to  assert  their 
rights;  when  a  neighbouring  nation  had  jost 
tltfown  off  a  yoke  which  was  become  intoler- 
able,— ^What  did  the  wise  ralers  of  this  coun- 
try do?    Why  they  declared  war,  not  only 


been  nnblusbini^jraElftimpied  to  be  justified  Jliy 
reason  ef  its  avowed  fr^ueacy  and  notoriety. 
The  meeting,  therefore,  haTB  no  hesitation 
in  asserting,  the  debt  can  never  be  said  to  be 
national,  nor  the  present  taxation  just^  seeing 
the  fonner  has  been  contracted  by  men  who 
do  not  represent  the  country,  and  the  latter 
raised  'without  consent  of  the  tait-payer ;  and 
it  is  contrary  to  the  laws  and  constitution  cf  ' 


against  tlie  French  nation,  but  also  against  the-  t^iis  and  every  free  country,  that  no  man  can 


-  friends  of  liber^  at  home." 

No¥K,  I  think  it  is  impossible  for  you  to  read 
this  passage,  without  Ming  of  opimon  that  its 
object  was,  to  impress  on  the  minds  of  the  pub- 
lic an  admiration  of  the  proceedings  ox  the 
French  nation  (polluted  lis  it  was  at  the  time 

•  by  treason,  by  blood,  and  by  crime  of  evety 
description  which  it  ever  entered  into  the  mind 
of  man  to  conceive),— and  of  those  who  were 

•termed  "the  Friends  of  Liberty  at  home"  in 
the  year  1793,  its  imitators  and  admirers  >—  to 
hold  out  that  the  sssooiations  of  that  peripd 
were  formed  for  the  purposes  of  promoting 
liberty,,  but  which  all  of  you  know  it  was  de- 
cided by  Jurymen  sitting  in  that  box  where 
you  «r9  now  placed,-^orymen  to  whose  in- 
telligence and  vigour  the  gratitude  of  this 
coniltry  must  be  for  ever  due, — that  they  were 
formed  for  the  purpose  o£  exciting  disaffection 
to  the  government,  of  introducing  turbulence 
and  -commotion,  and  of  overturning  the  Con- 
ttitntion.  In  short,  the  object  of  the  publica- 
tion was  to  call  upon  the  people  to  imitate 
what  was  so  worthy  of  aomiration;  and  it 
would  be  wasting'  time  to  persuade  you,  that 
if  this  was  the  ol^ect,  one  of  a  more  seditious 
description,  when  tsken  in  conjunction  with 
•the  other  passages  in-  the  publicaticm  which  I 
•have:  already  emkI,  or  am  now  to  read,  cannot 
be  conceived. 

The  publication  then  proceeds  in  direct 
terms  to  state,  ^'tfaatthe  House  of  Commons 
is  not  realty  what  it  is  called,— it  it  noi  a 
Boute  ofCammoiu."  And  hem  it  is  necessary 
for  me  to*  read  several  passages  to  you,  in  order 
to  prove  the  seditious  nature  of  the  publica- 
tion, and  which  I  shall  do  wiliiout  commen- 
tary, beekuse  I  am  persuaded,  that  nothing 
ihat  lean  add. could «arry  thejconviction  more 
strongly  to*  your  minds  of  its  pernicious  sud 
^minei  import  tiian  the  very  sentences  them- 
'  selves  which  i  am  to  bring  under  your  oonri- 
deradon. 

In  page  38  of  the  publication  you  will  find 
it  stated,  **  that  the  debt,  now  amounting  to 
nearly  1000  millions,  has  been  contracted  in 
the  prosecution  of  unjust  and  unnecessary 

•  wars,  by  a  corrupt  administration,  uniformly 
'Supported  by  a  llonse  of  Commons^  whicd 

-  cannot  be  said,  with  any  justice,  to  be  a  fiur 
and  equal  representation  of  the  country,  but 
which  for  the  most  part  is  composed  of  men 


means,  have  contrived  to  return  a  majoci^  of 
members  of  that  House  ;<-«  &ct  which  has  not 
only*beeu:a(teitted  on  aU  hands,  but  whtchhas 


be  taxed  but  with  his  own  consent,  or  ^ith 
the  consent  of  his  agent  or  representative.*' 

Again  at  page  35,  there  is  the  following 
passage :  **  We  have  these  twenty-five  years 
been  oondenmed  to  incessant  and  unparalleled 
slavery  by  a  usurped  oligarchy,  who  pretend 
to  be  our  Guardiant  and  RepresaUatwa,  while, 
in  fact,  they  are  nothing  but  our  ir^lejnUe,and 
determined  enemiet.    But  happy,  happy  am  I 
to  thinks  that  you  have  met  this  day  to  declare, 
'  that  you  will  suffer  yourselves  no  longer  to 
'  be  imposed  upc^."   And  a  little  lower  down 
it  is  stated  in  express  terms :    ''  At  present 
we  have    no  rmeientativet ;    they  are   onty 
fiomtno/,  not  reoi;  active  only  in  prosecuting 
their  own  designs,  and  at  the  same  time  telling 
us  that  they  are  agreeable  to  our  wishes." 
And  again,  at  page  38,  ''  A  set  of  pensioned 
seat-buyers  in  the  House  of  Commons  have 
deprived  you  of  all  your  rights  and  privileges. 
They  hold  both  emoluments  and  seats  in  that 
house,  contrary  to  the  express  precept  of  our 
glorious   constitution,  which  says,  *  that  no 
person  holding  any  emolument  can  have  a  seat 
m  the  House  of  Commons.'    Our  constitution 
also  allows  parliaments  only  to  be  of  one  year's 
duration,  and  that  they  are  to  be  chosen  an- 
nually by  the  people ;  but  they  have  elected 
themselves,  and  by  their  own  assumed  and 
arbitrary  juithority  have   made   parliaments, 
first,  of  three  years,  then  of  seven  years  dura- 
tion ;  and  with  the  same  lawless  power  they 
may  make  them  perpetual.    Alarming  to  ref- 
late, they  have  disregarded  our  constitution, 
they  have  scoffed  at  her  equitable  precepts, 
they  have  trampled  her  and  her  sons  under 
their  foet;    I  would  now  ask  you  where  is  your 
freedom  ?    Where  is  your  liberty  ?     When  we 
reflect  on  such  usage,  it  is  enough  to  excite  us 
with  ungovernable  indignation.    They  are,  re- 
cording to  our  glorious  constitution,  culpable 
of  treason,  and  justly  merit  its  reward.    Will 
a  nation  which  has  been  so  long  famed  for  its 
liberty  and  heroism,  suffer  itseV  to  be  duped 
any  longer  by  a  gang  of  impostors?    No,  it 
will  not     The  unanimity  of  our  sentiments 
and  exertions,  agreeably  to  the  constitution, 
will  once  more  dispel  the  doud  which  eclipses 
the  resplendent  and  animating  rays  of  liberty  ; 
and  will  again  make  her  sl^ne  forth  in  this  onoe 
happy  country  with  unimpeded  eflhlgence.'* 

In  order  to  remedy  all  this,  universal  sof- 


put  in  by  a  borough  faction,  who  have  nsofped  ^frageandannual  filaments  are  recommended- 
the  rights  of  •  the  people,  and  who,  by  undue 


Thus  the  publication  states,  (page  10.)-:  *^  The 
House  of  Commans,  in  its  original  compoas* 
tion,  consisted  only  of  commoners,  chosen 
a»mia%  by  tie  umiarial  miffhuge  qf  tie  people. 


M] 


fliMt  i%9mai  Bmdjwt  Smlkiutt. 


A.  }J.  1917 


4» 


1^ 


No '  noUtmiv  no  dtiigmaBy  do   natal  or 
tMlitary  officer^  in  sbort,  none  who  bald  pUoa^ 
or  receiTed  pe9$umtjrcm  govemmaUf  bad  aoj 
rigbt  to  sit  io  that  House.    This  is  what  the 
House  of  Conunons  was,  what  it  ought  to 
be^  and  what  we  wish  it  to  be.    This  is  the 
wanted  change  in  our  form  of  gOTernment,-* 
the  Commons  House  of  Parliament  restored  to 
kM  ofiginal  purity ;  and  this,  beyond  a  doubt, 
wouJd  strike  at  the  root  of  the  greatest  part  of 
the  evils  we  g[foan  under  at  the  present  day.'' 
At  page  34.  it  state%  "  that  the  only  effeotunl 
■Mans  that  can  be  adopted  to  relieve  the  nation 
in  some  measure  from  its  present  distresses^ 
are,  l^  Testoringibeimpreacriptible  rights  of  the 
nauooyby  a  remrm  in  the  representation  of  the 
people  in  the  House  of  Commons,  aod  by  an* 
Bual  partiaments;  imd  until  the$e  tike  pUwej  tk$ 
fteple  ctM  e»i€riam  no  mamuibU  txptiuUum  ^ 
ever    kmiag    tkur    eondUion  mpraoed,     But» 
aiiould  tbeso  salutary  measures  be  adopted, 
they  are  confident  that  such  a  Parliament  would 
always  act  for  the  good  of  the  nation,  and 
ensure  the  leopeot,  eonftdence^  and  support 
ef  Ae  whole  body  of  the  people.    Ana  it  i$ 
not  without  justice  that  the  meeting  ascribe 
to  the  want  of  a  iair  and  equal  representation 
of  the  people  in  Parliament*  all  the  wars^  and 
their  oonse<iueoces,  in  whid)  the  people  has 
been  engaged  for  half  a  century  past;  for  if, 
at  the  commencement  of  the  first  Aroerieaa 
war,  this  eoontry  had  been  blessed  with  a 
Hetiae  ef  Commons  chosen  by  the  free  suf- 
fiage  of  the  tax-payers>  would  they  have  acted 
eooiisteatly  with  the  constitution  of  their  own 
body,  to  have  gone  to  war  with  a  people  of 
the  uuae  origin  and  language,  merely  to  Ibroe 
taxes  upon  them .  without  their  consent  ?    Or 
would  tlicy  have  opposed  4he  straggles  of  tbe 
French  nation,  in  endeavouring  to  obtain  that 
fteadom  which  eve^  Briton  cherishes  as  liis 
birth-eight  ?    And  of  ultimately  forcing  upon 
them  a  haled  Dynasty,  oontrary  to  the  wishes 
of  nine-tenths  of  the  people  ?    The  idea  is 
Inly  preposteRMS."    In  page  26>  they  explain 
whaift  they  mean  by  the  ta>-pa]fen.    "  Consi*- 
dering  that  of  two  millions  of  inhabitants^ 
only  2f700  have  a  rigbt  of  voting  for  Membeia 
ef  FarliasBenC,  the  remaining  1,997,360,  al- 
though tax-payers,  directly,  or  indirectly,  hav- 
ing no  more  right  of  voting,  than  if  thej  were 
an  impertation  of  Slaves  from  Africa." 

After  going  through  all  this  long  detail  of 
giievflaces^  you  will  recolleoty  that  unless  the 
aeiNaia  e^led  for  are  granted,  and  the  evils 
eempleined  of  are  redrmed,  the  people  were 
told  that  theic  allegiance  was  to  bo  thrown  off; 
•■d  If  allegiaaoe  be  thrown  off,  rel^Uion  must 
lettew.  ne  lesult,  therefore,  of  the  whole 
tbat  I  have  lead  ii,  that  .as  the  condition  of 
tbe  pee|>le  never  ecmld  be  improved  till  uni* 
▼esaal  suffrage  and  annual  parliaments  were 
obtained,  so  unless  all  this  was  granted,  resist 
■use  must  be  iaade»  and  insurrection  against 
the  Oovemmeot  and  the  laws  must  be  the 
eeneequence.  But  you  know  that  in  this 
coumnr,  to  reaiit,  tBuM  UDSvMd  suffrage  be 

voL  xxxm. 


obtained  iS/  in  pther  words,  to  reaist  until  the 
British  constitution  be  fuudamentally  over* 
thrown. 

I  am  not  now  prepared, — and  it  would  be 
out  of  place  for  me, — to  enter  at  leogth  vpon 
this  important  subject,  on  which  so  many  per^ 
sons  have  been  so  gross^  deluded,  finl  I 
cannot  avoid  pointing  out,  in  a  few  sentences, 
that  at  no  one  period,  either  in  England  or 
Scotland,  did  universal  suffrage  ever  prevail ; 
and  in  Scotland,  in  particular,  from  the  great  sub- 
division of  property,  the  elective  suffrage  was 
never  so  extenaed  as  it  actually  is  at  the  pre- 
sent moment.  It  is  matter  of  notoriety,  that 
the  history  of  the  British  constitution  is  to  be 
found  in  the  feudal  system,  and  that  the  con- 
stitution of  Parliament  in  particular,  while  k 
sprung  out  of  that  system,  has  ever  retained 
features  which  strongly  mark  its  descent.  Tbe 
immediate  vassals  of  the  crown,  the  great 
Barons  who  held  of  the  King  ^*  in  ca^^^  were 
the  first  members  of  Parliament.  Originally 
there  were  no  persons  who  possessed  seats  in 
Pariiament  as  representatives  of  others;  nor 
were  any  such  introduced  into  the  Legislature 
until  the  great  estates,  to  which  tbf  duty  of 
attendance  in  Parliament  was  incident,  having 
been  divided,  and  that  duty  had  actinJly  be# 
come  a  burthen  upon  the  small  proprietors, 
the  foundation  of  the  representative  system 
was  thus  naturally  laid.  The  first  step  in  Uie 
progress  which  seems  to  have  been  made  was 
this,  that  charters  of  exemption  from  Parlia- 
ment were  frequently  solicited  and  obtained, 
but  those  were  declared  to  be  illegal.  Acoord- 
ii^S^y*  it  would  seem  next  to  have  grown  by 
degrees  Into  a  law  to  oblige  the  great  barone 
only  to  attend  in  person,  and  to  permit  the 
lesser  to  attend  by  their  representatives.  This 
is  in  truth  no  mattei  of  conjecture ;  for  by  c 
statute  of  our  Parliament,  passed  in  1427,  the 
smaller  barons  were  excused  fifom  coming  to 
Parliament  piovided  they  sent  oommissioneit 
from  tbe  shires. 

In  like  manner,  it  i#  proved  l^y  the  intro*' 
duction  io  the  laws  of  Robert  III.,  that  those 
burglis  alone  which  held  property  tn  f^^  of 
the  crown,  had  the  right  of  being  represented 
in  Pariiament  It  is,  therefore^  a  delusion  to 
state,  that  universal  suffrage  ever  made  part 
of  our  constitution,  or  indeed  that  the  right  of 
the  elective  suffrage  waa  ever  broader  or  more 
extensive  than  at  present.  In  foot,  I  know  ef 
no  country  in  which  universal  suffrage,  or  any 
thing  hke  it,  ever  existed,  but  one,  and  that 
was  France  in  the  year  1793.  At  that  period, 
no  doubt,  there  was  an  assembly  elected  by 
Bometbing  like  universal  suffrage,  and  what 
was  the  result?  The  degradation  of  the  no- 
bility,— the  dethronement  and  murder  of  the 
Sovereign,— the  overthrow  of  the  chuRh,^and 
the  extinction  of  religion.  Is  it  those  things 
that  these  prisoners  would  recommend!  I 
have  already  told  you,  that  liber^r,  as  it  waa 
practised  in  France  in  1793,  has  been  held  up 
ny  them  as  an  object  of  admiration ;  and  tf 
you  look  to  what  is  sUted  in  the  gdd  page 
F 


iB7l 


57  GEORGB  HI. 


Ttiat  tf  AUxmder  M*Larat 


i^ 


of  their  pubUcatioD^  tott  will  fiod,  that  while 
they  hola  up  to  reprobatioo  the  higher  orders 
of  the  State,  the  revolutionary  &te  of  the 
€hurch  does  not  seem  to  have  been  altogether 
out  of  their  contemplation.  *<  Their  reverend 
hirelings,^*  say  they,  ''would  convince  you  that 
you  are  suffering  under  the  visitation  of  the 
Almighty,  and  therefore  that  you  ougjht  to  be 
submissive  to  the  chastening  stroke.**  This 
allusion  has  a  direct  application  to  the  esta- 
IMisbed  church, — ^its  object  is  not  more  to  dis- 
suade the  people  from  submission  under  their 
distresses  than  to  bring  the  clergy  and  religion 
into  contempt.  It  is  to  tell  the  people,  that 
while  their  rulers  were  corrupt  ana  oppressing 
them,  the  ministers  of  religion  were  not  less 
base  nop  more  worthy  of  consideration'. 

But  while  liie  peophs  are  thus  told  in  plain 
bnguage  to  throw  off  their  allegiance,— while 
they  are  urged  on  to  resistance  to  the  exe- 
cutive government, — ^to  overthrow  the  Legis- 
lature, and  degrade  the  ministers  of  religion, 
the  publication  proceeds  Ho  hold  out  the  most 
direct  encouragement  to  rebellion.  Look  to 
the  passage  about  the  army  in  pace  32. 
''Your  infatuated  oppressors  may  harden 
themselves  against  your  requests;  they  may 
consider  themselves  as  fortified  behind  a 
veteran  army,  which,  they  may  imagine,  will 
be  always  ready  to  support  them,  though  in  an 
unjust  cause^  and  by  wnich  they  may  conceive 
it  possible  to  awe  a  nation  into  silence  and 
submission.  But  let  them  recollect  that  the 
army  is  still  composed  of  men  and  of  BrUom^ 
And  shall  they — though  they  have  exerted 
their  valour  in  the  cause  of  fanaticism, — 
though  they  have  been  led  to  fight  the  battles 
of  oppressors,  and  establish  the  thrones  of 
tyrants ;  shall  they,  in  violation  of  the  privi- 
leges of  freemen^ — forgetful  of  the  glory  [of 
their  country, — ^forgetful  of  all  that  is  dear  to 
themselves,— contemptuous  of  all  that  they 
Ibve,  and  regardless  of  the  fete  of  posterity, 
— shall  they  turn  their  arms  to  destroy  the 
constitution  of  their  cx»untry  ?  What  1  after 
displaying  such  feats  of  valour  that  has  immor* 
talised  them  for  ever,— will  they  stoop  so  low 
as  to  become  instrumental  in  thetuin  of  their 
country,  fot.  the  sake  of  a  faction  which  has 
oast  a  deep  shade  of  disgrace  over  all  the 
splendour  of  their  victorious  achievements? 
I  appeal  to  the  army  itself  for  a  reply.  I  hear 
h  burst  like  thunder  from  man  to  man,  from 
line  to  line,  from  camp  to  camp, — No  I  Never  I 
Never !  We  fight  not  for  the  destruction,  but 
for  the  preservation  of  the  rights  and  privi- 
leges of  our  beloved  country  1*^ 

You  will  please  here  to  remember,  that  you 
are  told,  in  the  outset  of  the  publication,  that 
under  the  eireumstances  stated,  allegiance  has 
become  forfeited,  and  is  to  be  thrown  off;  but 
in  the  passage  I  have  just  read,  as  if  the 
readers  might  have  the  army  in  view  to  restrain 
their  patriotic  fury,  their  fears  are  removed, 
and  they  are  encouraged  with  the  hope^  that 
the  army  will  not  fight  against  them,  but  will 
'^u  ^d  co-operate  with  their  projects  of  in- 


surrection. Can  any  thing  more  insidioiis,^' 
any  thing  more  wicfced, — any  thing  more  sedi-* 
tious  be  conceived  or  imagined  f  I  vrill  fairly 
teMyou,  that,  in  my  opinion,  no  pubticatioa 
has  ever  been^  brought  before  this  court  of  a 
more  vricked  and  pernicious  tendency,  none 
better  calculated  to  produce  turbulence  and 
commotion,  than  that  which  I  have  read  to  you. 

Look  to  the  publication  for  which  Palmer* 
was  tried  at  the  circuit  court  at  Perth  in  the 
year  1793;  and  was  tntosported  to  Boixay 
bay;  and  although  these  times  ai%  not  of  a 
description  to  render  it  necessaiy  to  inflict  the 
same  degree  of  punishment  upon  the  prisoners 
as  was  awarded  in  that  case,  ^ere  is  not  any 
thing  in  it  nearly  so  inflammatory,  so  sedittooa, 
tending  so  much  to  excite  discontent  against 
the  government,  or  to  introduce  turbulence 
and  commotion,  as  there  is  in  the  paper  which 
is  this  day  brought  under  your  consideration. 

That  paper  I  think  it  my  duty  to  read  toyoti 
from  the  records  of  the  court.  It  is  in  these 
terms: 

'•  Friends  and  feIlow-citisen9;^You,  who 
by  your  loyal  and  steady  conduct,  in  these 
days  of  adversity,  have  shown  that  you  are 
worthy  of,  at  least,  some  small  portion  of 
liberty,  unto  you  we  address  oor  language  and 
tell  our  fears. 

^  In  spite  of  the  virulent  scandal,  or  mali* 
cious  efiorts  of  the  people's  enemies,  we  will 
tell  you  whole  truths ;  they  are  of  a  kind  to 
alarm  and  arouse  you  out  of  your  lethargy. 
That  portion  of  liberty  you  once  enjoyed  is  fast 
setting,  we  fear,  in  the  darkness  ot  despotism 
and  tyranny!  Too  soon,  perhaps,  you  who 
were  the  world's  envy,  as  possessed  of  some 
small  portion  of  liberty,  will'  be  sunk  in  the 
deptb  of  slavery  and  misery,  if  yotr  prevent  it 
not  by  your  w^l-timed  efforts. 

**  Is  not  every  new  day  adding  a  new  Unk 
to  our  chains  ?  Is  not  the  executive  branch 
daily  seizing  new,  unprecedented,  and  unwar- 
rantable powers  P  Has  not  the  House  of  Com- 
mons (your  only  security  from  the  evifa  of 
tyranny  and  aristocracy)  joined  the  coalitioa 
against  you?  Is  the  electioti  of  its  members 
either  fair,  free,  or  frequent  ?  Is  not  its  inde- 
pendence gone,  while  it  is  made  up  of  pennons 
and  placemen ! 

**  We  have  done  onr  duty,  and  are  deter- 
mined to  keep  our  posts,  ever  ready  to  assert 
our  just  rights  and  privileges  as  men,  the  chief 
of  which  we  account  the  right  of  ilniversaA 
suffrage  in  the  choice  of  tliose  who  serve  ia  the 
Commons  House  of  Parliament,  and  afirequcnt 
renewal  of  such  power. 

**  We  are  not  deterred  or  disappointed,  by 
the  decision  of  the  House  of  Commons  coa- 
eeming  our  petition.  It  is  a  question  we  did 
not  expect  (though  founded  on  truth  and  rea* 
son)  would  be  supported  by  superior  numbers. 
— Far  from  being  discouragea,  inre  are  more 
and  more  convinced  that  nothiag  can  save  this 
nation  from  ruin,  and  give  to  the  people  that 

•  3  iiow«  Mod.  St.  TV.  237. 


^ 


mMi  namat  Btirdjw  Stdilm. 


A.  D.  1817. 


17« 


Iw^pptneaM  wlud^  tli^  liare  a  right  to  look  for 
vxXex  govenmieBty  tet  a  refonn  in  the  House 
of  Omudods,  fiHiiKied  apon  the  eternal  basis 
of  juatioey  faiz^  fiee,  ana  equal. 

«  Felloir-citiiena; — The  time  is  now  come, 
when  y9m  ammi  either  gather  roond  the  fabric 
of  ]ibcr^4o  •uppori  it,  or,  to  jour  eternal  in- 
iumjt  let  U  &U  to  the  ground,  to  rise  no  more, 
huiiivg  along  with  it  every  thing  that  is  vala- 
aUe  and  dear  to  an  enligbtened  people. 

**  You' are  plunged  into  a  war  bj-a  wicked 
ministrj  and  a  eompliant  pa^iament,  who  seem 
caielesa  and  unconoemed  for  your  interest, 
the  end  and  deaign  of  which  is  almost  too 
horrid  to  lelale,  ue  destruction  of  a  whole 
people  merely  hecanne  th^  will  be  free. 

^  ^  it  your  eoaunerce  is  sore  czan^d  and 
almost  mined.  Thooaands  and  ten  thousands 
ofyow  fellovF-dtizena,  from  being  in  estate 
ef  prasperi^,  are  reduced  to  a  state  of  poverty, 
au8eijr>  and  wretchedness. — A  list  of  bank* 
lupleieiy  ^ineqnalled  in  any  former  times, 
fionns  a  part  in  the  retinue  of  this  Quixotic 
expedition ;  your  taxes,  great  and  burthen- 
some  as  -they  are,  must  soon  be  greatly  aug- 
mented; your  treasure  is  wasting  fast;  the 
blood  of  your  brethren  is  pouring  out,  and  all 
this  to  fonn  chains  for  a  free  people,  and 
eventually  to  rivet  them  £qt  ever  on  yourselves. 
^  To  the  loea  of  the  invaluable  ri^its  and 
privileges  which  our  fstther's  enjoyed,  we  im- 
pute tUs  barbarous  and  calamitous  war,  our 
ruinous  and  still-growing  taxation,  and  all 
the  wyyt"—  and  oppressiops  which  we  labour 
under. 

^  Fellow-eitizens ; — ^The  friends  of  liberty 
call  upon  j<»9  by  all  that  is  dear  and  worthy 
of  possessing  as  men ;  by  your  own  oppres- 
sions; by  the  miseries  and  sorrows  of  your 
suffering  brethren;  by  all  that  you  dread;  1>y 
the  sweet  lemembrance  of  your  patriotic  an- 
eestois;  and  by  all  that  your  posterity  have  a 
ri^t  to  expect  from  yon, — to  join  us  in  our 
exertions  for  the  preservation  of  our  perishinff 
libnty,  and  the  recovery  of  onr  long  lost  rights.^' 
Gentlemen,  this  is  the  publication  which 
was  held  by  a  jury  in  1793  to  be  a  seditious 
libel;   and  1  ask  you,  whether  from  the  be- 
ginning to  the  end  of  it  there  is  anv  thing 
more  offensive,  any  thing  more  calculated  to 
alienate  the  minds  of  his  majesty's  subjects 
fern  the  government  and  constitution  of  the 
country,  any  thing  better  imagined  for  leading 
the  people  to  the  use  of  physical  force  and  to 
open  reoeUion,  than  is  to  be  found  in  almost 
every  passage  of.  the  publication  lying  on  the 
table  f    Sure  I  am,  that  there  is  not  to  be 
found   from   the  beginning  to  tlie    end    of 
Palmei^s  Address,   a  direct  recommendation 
to  the  people  to  thow  off  their  allegiance, — 
that  there  is  no  incitement  to  actual  rebellion 
— that  there  is  no  encouragement  held  out  to 
the  people,. that  if  thejf  rose  to  enforce  the  ac- 
compliAment  of  their  purposes,   the  army 
would  ioin  them.    But  in  the  pamphlet  upon 
your  iMe,  all  this  is  done  in  the  most  plain 
and  direct  texms.    The  House  of  Commons  is 


said  to  be  corrupt,  and  not  to  be  the  represen- 
tative of  the  people :  the  whole  rulers  of  the 
country  are  stated  to  be  corrupt,  and  while 
guihv  of  the  most  gross  oppressions  on  the 
people,  caring  for  nothing  but  their  own  base, 
soroid,  and  tyrannical  purposes.  The  clergy 
are  said  to  be  hirelings,  mlsely  deluding  the 
people  with  the  notion  of  their  distresses  ori- 
ginating with  Providence ;  and  while  the 
people  are  called  upon  to  throw  their  alle- 
giance to  hell,  they  are  encoumged  with  the 
certain  hope  of  Uie  support  of  a  brave  and 
victorious  army. 

It  seems  impossible  in  my  mind,  therefore, 
to  doubt,  that  if  the  publication  in  Palmer's 
case  was  seditious,  that  now  upon  the  table 
can  be  otherwise ;  that  if  the  one  merited 
punishment,  the  other  can  be  innocent.  On 
the  contrary,  I  will  tell  you  foirly,  in  my  view 
of  the  subject,  the  present  is  the  worst  of  the 
two. 

It  is  now  proper  that  I  should  tell  yon,  that 
the  same  course  of  defence  which  has, been 
pursued  to-day,  was  followed  in  the  case  I 
nave  just  been  speaking  of.  In  Palmer's  case 
it  was  said — ana  we  were  told  to-day  that  it 
would  be  proved — ^that  language  similar  to 
that  used  in  this  publication  had  been  em-' 
ployed  in  petitions  to  the  House  of  Commons, 
without  censure  or  animadversion ;  that  lan- 
guage not  less  strong  was  employed  by  Mr; 
Pitt,  and  l^  the  duke  of  Richmond,  and 
various  other  statesmen;  and  the  inference 
which  was  drawn  in  the  year  1793,  and  which, 
I  presume,  will  be  drawn  to-day,  is,  that  it 
was  legal  for  Mr.  Palmer  in  his  case,  and  for 
the  prisoners  in  theirs,  to  employ  the  language 
which  those  statesmen  have  made  use  of.  But 
my  learned  friend  (Mr.  Clerk),  who  was  also 
of  counsel  in  the  case  of  Psdmer/was  told 
then,  and  I  beg  leave  to  repeat  it  to  you  now, 
that  the  ouestion  before  the  jury  and  the  court 
was  not  how  often  the  crime  of  sedition  had 
been  committed,  or  how  often  it  had  been 
committed  with  impunity :  il  was  not  whether 
petitions  containing  seditious  matter  had  been 
presented  to  parliament,  without  the  authors 
being  punished :  it  was  not  whether  parlia- 
ment had  allowed  seditious  words  to  be  used 
in  its  own  presence  without  animadversion.; 
and,  last  of  all,  the  question  was  not  whether 
the  law  officers  of  tlie  Crown  had  allowed 
their  duties  to  sleep,  and  passed  over  sedition 
witjiiout  bringing  prosecutions :  but  the  ques- 
tion simply  was  then,  as  it  is  now,  whether 
the  crime  attributed  to  the  prisoners  at  the  bar 
amounted  in  law  to  sedition,  and  whether,  if 
it  did,  they  were  guilty  of  having  committed 
it.  If  it  were  proved,  that  five  thousand 
petitions  containing  language  eoually  strong 
as  that  found  in  this  publication,  had  been  re- 
ceived by  parliament,  or  that  the  House  of 
Commons  nad  permitted  language  ten  times 
stronger  to  be  used  in  their  own  presence, 
that  can  never  establish  that  the  prisoners  have 
not  been  guilty  of  the  crime  of  sedition  charged 
in  thb  indictment.    The  House  of  Commons 


Tl] 


S7  GfiORGB  III. 


Trial  ofAiuandtr  M'LmrM 


C79 


has  no  power  df  making  or  declaring  law,  or 
of  legalizing  that  which  is  oontrary  to  law.  It 
is  but  one  branch  of  the  legislature,  and  if  it 
permits  language  to  be  used  reflecting  on  it- 
self, on  the  Crown,  or  or  the  House  of  Lords, 
which  erery  lawyer  out  of  it  holds  to  be  sedi- 
tious, which  courts  of  law  have  found  to  be 
seditious,  that  is  no  reason  why  the  same  lan- 
guage, when  employed  out  of  doors  with  a 
view  to  corrupt  me  minds  of  the  king's  aob- 
j'ects,  and  to  excite  disaffection  and  commo- 
tion, shaU  not  be  repressed  with  the  punish- 
ment of  sedition. 

In  the  course  of  the  statement  with  which 
it  has  been  my  duty  to  trouble  you,  and  which 
I  have  put  into  as  plain  language  as  T  could 
employ,  I  had  occasion  to  mention  that  in  all 
^ases  of  sedition  the  state  of  the  times  when 
the  act  complained  of  has  been  committed  is 
to  be  maturely  viewed  and  considered;  that 
what  ma^r  be  innocently  done  at  one  period 
may  be  highly  criminal  at  another ;  and  that : 
under  one  state  of  the  country,  language  may  ' 
be  used,  or  a  ^crriting  published,  with  impunity,  ' 
which,  under  another,  would  render  the  author 
amenable  to  the  arm  of  the  law.    Keeping  this 
in  your  minds,  it  is,  I  apprehend,  impossible 
for  you  to  forget  the  period  when  the  speech 
in  question  was  made,  and  the  libel  before  you  ; 
was  published.    It  has  been  proved,  and  I  j 
freely  admit,  that  at  the  time  when  all  this  took  ' 
place  the'  distresses  of  the  country  were  not 
only  great,  but  that  the  misery  of  the  lower 
classes  of  the  people  had  reached  to  an  extent 
seldom  experienced  in  these  realms.    Those  ' 
calamities,  overwhelming  as  they  were  of  them-  \ 
selves,  were,  however,  aggravated  by  this,  that  | 
at  the  period  in  question  they  were  converted, 
^  all  of  you  must  recollect,  into  an  engine  for 
jexciting  discontent  throughout  the  great  body  ' 
of  the  manufacturing  population,  who  had  then  i 
been  thrown  altogether  out  of  employment.  | 
ITie  most  unprec^ented  exertions  were  then  ' 
cmplojred,  by  the  circulation  of  inflammatory 
and  seditious  tracts,  to  excite  the  minds  of  the 
people  against  the  settled  order  of  things  in  the 
country,  wWle,  with  a  malignity  before  utterly 
unknown  amoiig  us,  and  having  a  precedent 
only  in  the  means  that  were  employed  for  pre- 
paring the  people  of  France  tor  the  direfol 
event  of  the  Revohition,  a  simultaneous  ac- 
tivity ivas  employed  in  the  dissemination  of 
immonfl,  irrehinoitf  and  indecent  works,  to 
subvert  the  religious  principles  and  habits  of 
the  people.    No  doubt  public  conventions,  as 
in  1793,  were  not  held,   because  all   things 
which  had  then  attracted  the  eyes  of  the  police 
and  the  administrators  of  the  laws,  and  were 
repressed  by  the  Judgments  of  this  court,  were 
carefully  avoided.    But  a  system  no  less  dan- 
gerous had  then  been  adopted  hi  their  stead. 
That  system  was,  to  keep  the  whole  population 
of  the  country  in  a  state  of  ferment,  by  con- 
voking meeting  after  meeting  in  the  different 
manufacturing  and  populous  districts,  under 
the  pretence  of  petitioning  parliament  against 
abnses.    At  thesa  nreetingv,  by  the  use  of  in* 


flamm'atory  language  of  oae  4escifpfioa  or 
another,  the  minds  of  the  labouring  dasses  had 
got  into  a  state  so  unsettled,  as  to  have  become 
prepared  for  violence  of  any  kind,  to  which* 
their  leaders  mi^t  direct  them.  In  some 
quarters  the  e(re<Hs  of  thil  system  had  become 
iM.  less  tremendotts  than  those  of  its  prede- 
cessor in  1793.  In  others,  its  eoasequetieea 
were  even  worse.  We  know  the  effects  in 
Glasgow.  You  have  lately  beard  the  fruta  of 
it  in  Manchester. 

This  situation  of  public  aAnrs,  which  ia 
matter  of  noj^riety,  must  entei-  deeply  iofto 
your  consideration  in  weighings  the  views  and 
intentions  of  the  prisoners  in  committing  those 
acts  which  I  have  charged  against  them  aa  in-; 
ferring  the  crime  of  sedition.  But,  indeed,  of 
the  malignity  of  their  intentions  I  think  you 
can  have  no  doubt.  It  is  impossible  for 'm«y  or 
for  you,  to  look  into  the  minds  of  men,  and  to 
discover  what  is  die  purpose  at  the  bottom  of 
their  hearu.  .  Tliat  can  only  be  galfaeied  frosa 
their  actions.  Now,  if  you  consider  the  time 
and  the  situation  of  the  country  when  this 
speech  was  delivered,  and  this  pamphlet  waa 
published ;  and  if  you  weigh  the  terms  of  tint 
speech,  and  the  various  passages  of  that  work, 
the  whole  of  which  will  be  before  yon,  wb4 
which  I  trust  you  wiU  seriously  consider,  it 
seems  to  me  impossible  that  you  should  hesitate 
in  forming  a  decided  and  clear  opinion  that 
the  purpose  of  the  prisoners  was  to  render  the 
people  disaffected  to  the  government,  and  to 
excite  them  to  acts  of  commotion  and  rebellion. 
If  such  is  your  opinion,  it  is  your  duty  to  ftnd 
the  prisoners  guilty.  , 

No  doubt  they  have  been  represented  aa 
persons  of  good  character.  Be  it  so.  Witii 
their  character  in  general  I  have  nothing  todo^ 
and  leave  them  every  advantage  they  may  have 
upon  this  bmnch  of  the  evidence.  To  myself 
it  appears,  that  what  has  been  provfed  of  their 
diaracters,  however  good  in  other  respects,  ia 
against  them  in  this  case.  In  that  point  of 
view^  I  should  state  the  evidence  respecting 
their  characters  to  you,  w;ere  I  to  dwell  upon 
it,which,  however,  I  shall  reftain  from  doing. 
Indeed  I  shall  notice  it  no  further,  dian  merely 
to  mention,  as  matter  of  curiosity,  that  evidence 
of  the  same  sort  was  brought  forward  and  in* 
sisted  upon  in  the  trials  of  1 794  and  1794.  In 
fact,  the  defence  in  the  present  case  seems 
modelled  upon  those  cases  of  a  similar  descrip- 
tion that  have  gone  before  it,  and  will^  I  trust, 
meet  with  the  same  fate. 

Having  thus  detained  you  at  so  great  length, 
I  shall  leave  the  case  to  you,  perfectly  satisned 
with  having  done  my  duty  in  bringing  it  before 
you.  It  appeared  to  me,  after  a  full  consid^ 
ration,  to  oe  a  case  which  could  not  be  passed 
over,  as  it  was  necessary  to  ptit  Kmtts  to  the 
circulation  of  the  dangerous  and  sedttious  pub- 
lications diisseminating  at  present  in  every 
quarter  of  the  country.  It  is  for  you  tK>  say 
upon  the  evidence,  wnether  my  opinion  has 
been  correct  or  not.  I 'am  satisned  myself 
fhMX  my  opinion  is  right,  and  that  A«  expies* 


Jg\  Mi  lUmmu  HtM/W  Btdkm.  A.  Du  1S17.  [74 

MOOS  chMge^  ig  Hit  indicUaept  wn  seftlkwi ;  bo  Wntlon  to  eioite  thsm  lo  NdiUoiiom- 

«iid  I  hare  had  to-day  tbe  Mtufection  to  bear  betlion,  to  any  specMs  ef  viMance,  or  to  asy 

dMrt  the  court  thtaks  90  likewise.    You  will  unlawful  act.    They  bad  i»et  with  the  fair  and 

mtterwaids  learn  their  loidahifn'  opinion  opon  legvU   pnrpoae    of  petitiooiAg   tho   different 

die  endence,  as  you  hare  now  heard  mine,  branehes  of  the  legieiatttre  for  reKef  min^t  the 

That  I  hare  diooght  H  my  dnty  to  fpre  you  grieranees  of  which  they  complained ;  and  in 
plainly  and  witbont  ramish.    Bat  clear  though  !  speaking  of  those  grieranceSy  the  panel  did 

1  he  on  the  whole  case,  I  shall  be  satisfied  with  nothing  more  than  assist  in  the  prerloos  de» 

whatever  rerdict  yon  may  give,  and  I  can  hare  liberations  necessary  to  ascertain   the  riewe 


no  doubc  the  eonntry  will  be  90  likewise. 

Mr.  Clerk. — Gentlemen  of  the  jnry,  in  the 
kmg  «nd  able  argument  which  yon  have  just 
feea.Td,  the  lotd  advocate  has  attempted  to  con* 
Tinoe  yoa  that  both  of  the  prisoners  at  the  bar 


and  wishes  of  the  people  assembled,  as  to  the 
natare  of  the  applications  that  ongbt  to  be 
made.  This  defimce,  so  important  for  the 
panely  was  opened  at  the  beginmng  of  the  trial ; 
tmt  so  far  from  attempting  to  refoteity  the 
lord  advocate  did  not,  in  the  course  of  bis  vety 


bave  been  guilty  of  the  cnmes  laid  to  their  { long  argument,  so  much  as  aHude  to  it :  and 
dMTge.    I  attend  yon  for  one  of  them  only,  |  yon  wiU  see  that  the  indictment,  unfairly  sop* 


Mr.  If ^Laren^  and  shall  leaive  the  defence  of 
the  other,  Mr.  Bain),  to  bis  own  connsd,  Mr. 
JeiVey,  who  is  able  to  do  the  most  ample  justice 
to  Me  client. 

Mr.  McLaren  is  aeeused  of  having  made  a 
•editioQS  harangue  to  thf  people  assembled  at 
«  numerous  meeting  held  in  a  field  near  Kil- 
tnamod^  and  of  having  afterwards  caused  his 
•peedk  to  be  printed,  along  with  other  speeches 
«f  a  like  tendency,  as  a  pamphlet,  which  was 
sold  and  distributed  in  that  neighbourhood. 

That  Mr.  McLaren  was  present,  and  spoke  a 
lew  sentences  a^  the  public  meeting  already 
nentipBed,  is  certainlv  true;  but  I  hope  to 
satisfy  you,  that  considering  Uie  occasion  and 
.meumsunces  under  which  it  was  delivered, 
tihe  speech  (if  speech  it  might  be  called)  con* 
tahied  nothing  seditious  or  otherwise  criminiU. 
As  to  the  pubKcatbn  of  the  pamphlet,  Mr. 
M'Laren  had  no  concern  with  it,  and  knows 
nothioff  of  it.  There  is  no  evidence  that  he 
sosistcd  in  the  printing  or  publication  even  of 
that  speedi  whidi  is  said  to  have  been  spoken 
%y  himself;  and  certainly  there  is  do  pretence 
Sot  saying  that  he  took  a  concern  in  the  pub- 
lication, nle,  or  distribution  of  the  pamphlet. 
X  hope,  theiefbre,  that  I  may  disencumber  my- 
self of  this  branch  of  the  accusation,  as  not  af- 
/ectiog  Mr.  McLaren  at  allj  and  leave  it,  in  so 
fer  as  it  may  be  thought  to  aff^t  the  other 
panel,  to  the  consideration  of  Mr.  Jefi^y,  who 
win  address  you  for  him. 

As  to  the  criminality  of  the  speech  at  the 
public  meeting,  moch  eloquence  nas  been  em- 
ployed, and  some  points,  both  in  £ict  and  in 
law,  have  been  stmined  to  the  utmost  against 
the  panel,  in  declamatory  comments  on  the 
wickedness  of  hissupposed  intention  to  blow  up 
the  flames  of  sedition  In  die  multitude,  as  well  as 
OB  the  supposed  illegal  and  dangerous  tendency 
of  his  words,  as  being  utteriv  subversive  of  the 
Bnrish  constitution  and  of  all  good  goveri^ 
meat  Bat  in  making  these  violent  and  un- 
charitable strictures,  it  wis  forgotten  that  a 
publii;  meeting  having  been  called  for  lawful 
purposes,  tiie  occasion  rendered  it  necessary 
mt  the  oanel  (who  had  been  appointed  to 
open  the  business)  should  make  some  remariis 
on  the  subject  of  public  grievances.  This  is 
Ins  dcKxics*    In  addfcssisg  the  people,  ha  hod 


pressing  the  object  and  purposes  of  the  lawml 
meeting  at  which  the  panel  made  his  speech^ 
represents  it,  as  well  as  the  other  speechet 
there  made,  as  seditious  and  inflammatory 
bamngaes,  uttered  without  the  pretence  of  asy 
fair  or  legal  purpose.  These  cireumstances 
are  not  a  little  eitraordinarr,  if  the  publis 
prosecutor  rsally  bad  hopes  of  being  soccessfU 
m  his  charee.  With  such  hopes  he  should 
have  argued  the  case  as  it  stands  upon  the 
evidence :  he  should  have  attempted  to  answer 
the  defence  on  the  fact,  or  on  the  law,  or  ob 
both ;  whereas,  by  taking  no  notice  of  a  ds> 
fence  tmquestionably  relevant,  he  either  held 
it  to  be  unanswerable,  or  intended  to  rely  upe* 
a  doctrine  (which  can  never  be  admitted,  and 
which,  indeed,  the  lord  advocate  hisuelf  did 
not  directly  maintain),  that  occasion  and  cir* 
cumstances  can  make  no  difl'erenoe  as  to  the 
criminality  of  words — ^thal  the  same  words 
must,  if  they  are  seditious  on  any  ocoasioB, 
be  seditious  on  all  occasions,  without  the  Uaal 
regard  to  the  purpose  or  intent  of  the  speaker. 
But  against  such  an  absurdity  it  is  UBBeecssaxy 
to  reason.  Every  one  must  allow  that  the 
same  words  may  be  highly  criminal,  or  alto- 

S ether  innocent,  nay,  absolutely  rtqaired  by 
uty,  according  to  the  difierent  situations  is 
which  they  may  be  uttered ;  and  on  this  ground 
I  maintain,  that  even  if  the  words  of  the  panel 
could  not  have  been  spoken  without  criminaUty 
in  other  situations,  they  were  justifiable  as 
they  were  spoken  to  men  assembled  in  delibo- 
ration  about  lawfbl  and  dutifbl  petitioBs,  rs^ 
ptesenting  their  grievances  or  complaints  to 
the  different  branches  of  the  legislature-.  Nor 
does  it  appear  of  any  hnpoitanoe  that  Warm  or 
intemperate  expressions,  not  sufikieotly  re- 
spectful to  their  superiors,  oocasiooall^  fell,  in 
the  course  of  their  deUberatioBs,  fVom  people 
in  the  lowest  mnks  of  Hfe,  unable  to  express 
themselves  with  that  decency  which  is  required 
fh>m  men  In  higher  sftoatioos,  if  it  be  certain, 
which  it  is,  that  they  looked  foiward  to  no 
other  result  from  their  meeting,  than  the  exe^. 
cise  of  their  unquestionable  right  to  petitioB, 

Suietlv  and  peaceably,  without  disorder  or 
tstuibaace. 

The  Tight  of  pelkloaiag  has  brionged  to  the 
subjects  of  tins  eouBtry,  and  svBo  to   lihe 


741 


£7  GEORGE  IIL 


Trial  qfJUtmdgrM'lMm 


[70- 


BMBftesi  of  the  peopie»  from  ancient  times* 
Since  the  Revohition  it  has  never  been  questi- 
oned; and  immediaiely  before  that  glorious 
event,  it  was  attacked  onlj  to  enable  a  tyian- 
Bioal  government  to  subvert  the  public  liberty. 
But  the  attack  was  repelled  even  in  the  worst 
of  times ;  and  the  first  act  of  die  government 
of  King  William  and  Queen  Mary  was  to 
confirm  the  right  of  petitioning,  as  a  frand^ise 
•f  which  the  people  could  not  be  deprived. 
It  has  ever  amce  been  considered  as  a  right 
unalterably  fixed  by  the  fundamental  laws  of 
the  state ;  and,  accordingly,  though  the  ezer^ 
mse  of  it  is  suj^sed  to  be  sometimes  unplea- 
sant to  the  government,  yet  no  administration, 
and  neither  House  of  Parliament,  has  hitherto 
thought  proper  even  to  disoourage  the  people 
in  the  exercise  of  their  right  of  petitioning. 
How  many  hundreds,  or  rather  thousands,  of 

Eetitioos  have  been  presented  to  the  difierent 
ranches  of  the  legislature  within  these  few 
years,  representing  as  grievances  thinn  which 
are  not  admowled^red  to  be  such  1  and  yet  the 
petitions,  as  commg  from  the  people  in  the 
exercise  of  their  right,  have  been  graciously 
received  by  tliose  to  whom  they  were  address- 
ed. And  so  important  is  the  right  of  petition* 
lAg,  that  every  other  right  in  the  people  has 
bc^«  supposed  to  depend  upon  it,  inasmuch 
as  the  people,  if  deprived  of  that  right,  would 
be  in  oanger  of  losing  the  protection  necess^ 
to  defend  them  in  their  other  rights. 

It  is  obvious  that  a  fair  communication  from 
the  people  of  their  grievances  and  discontents 
to  the  legislature,  which  has  the  power,  and 
whose  duty  it  is  to  protect  them,  cannot  be 
•edition,  if  they  have  a  right  to  make  such 
communication.  If  the  people  should  petition 
parliament  without  hanng  the  right  by  law 
to  do  so,  these  petitions  might  be,  and  in 
almost  every  case  would  be  seditious  and 
dangerous,  in  raising  or  increasing  discontents 
and  disturbances ;  because  every  complaint  of 
a  public  grievance  has  a  tendency  to  create  a 
public  discontent,  and  this  is  illegal  and  se- 
ditious in  every  case  where  the  law  does  not 
allow  it.  For  the  same  reason,  any  violent 
complaint  of  public  grievances  may  be  sediti- 
ous or  illegal,  where  it  is  not  addressed  to 
persons  having  legal  authority  to  take  it  into 
consideration  and  give  relief.  But  it  would 
be  a  solecism  to  say,  that  a  petition  to  the 
King  or  to  either  House  of  Parliament,  stating 
grievances,  and  praying  for  redress  is  sediti- 
ous, because,  1st,  it  is  allowed  by  law ;  2dly, 
the  persons  addressed  have  an  authority  to 
take  the  complaint  into  consideration  and  give 
relief.  Petitioning  is  indeed  considered  as  a 
means  of  removing  discontents  and  preventing 
disturbances,  not  as  a  means  of  raising  them  ; 
and  this  may  be  true  it  some  cases,  though  it 
is  not  always  so,  and  we  have  frequently  seen 
a  forment  of  discontent  much  increased  by 
numerous  meetings^  of  the  people,  called  for 
the  purpose  of  petitioning.  But  stil)  the  legal 
'right  of  petitioniog  is  unquestionable ;  and  it 
Aust  be:  supposed  that  this  right,  though  it 


cannot  be  used  without  expressing  discontent, 
and  thereby  communicatiag  it  among  the  peo*. 
pie,  and  possibly  raising  it,  where  it  had  pre- 
viously no  existence,  may  be  legally  (and 
without  any  crime,  or  the  fear  of  criminal  pro- 
secutions) used  in  every  case  whatever,  even 
though  the  use  of  it  should  in  some  respects 
have  a  bad  tendency;  the  utility,  and  even  ne» 
cassity  of  presenting  the  right,  counterbalanc- 
ing the  mischieCi  which  may  be  occasioned  by 
the  seditious  or  discontented  spirit  which  may 
he  raised  by  it. 

But  it  must  be  plain,  that  if  the  people  have 
a  right  to  state  the  grievances  in  petitions  for 
redress  of  grievances  to  the  different  branches 
of  the  legislature,  it  follows  as  a  necessary 
consequence  that  they  have  a  right  to  state 
these  grievances  in  the  plainest  language,  and 
even  in  what  is  commonly  considered  to  be 
strong  or  coarse  language  in  the  description 
of  public  abuses,  if  they  do  not  in  their  peti« 
tions  violate  that  respect  that  is  due  to  the 
legislature :  under  that  restriction,  tb^y  may 
assert  in  their  petitions  that  there  are    the 
grossest  abuses,  even  in  the  legislature  itself. 
And  you  need  not  be  told,  that  even  petitions 
of  that  kind  are   occasionally  sent  from  all 
quarters  of  the  country,  when  discontents  pre- 
vail among  the  people.    A  stranger  to  the 
peculiarities  of  the  British  Government  might 
think  it  odd  that  petitions  of  this  class,  con- 
taining inferences  of  a  nature  apparently  so 
irreverent,    not   only  indicating  an  extreme 
degree  of  discontent  in  the  petitioners,  but 
directly  tending  to  raise  and  aisseminate  the 
same  kind  of  discontent  through  the  whole  of 
the  kingdom,  should  be  tolerated,  especially 
where  it  is  plainly  the  opinion,  not  only  of  the 
different  branches  of  the  legislature^  but  ato 
the  opinion  of  the  more  sensible  part  of  the 
community,  that  the  petitions  are  very   ill- 
founded  in  their  representations  of  grievances, 
and  demand,  by  way  of  redress,  new  public 
measures  or  arrangements,  which  would  not 
only  be  useless,  but  dangerous  and  even  cala- 
mitous.   Such  considerations,  however,  have 
no  influence,  or  very  little  inflnence,  in  the 
question,  whether  the  people  have  the  right  to 
present  their  petitions,  and  whether,  when 
offered,  the  petitions  ought  to  be  received. 
On  the  contrary,  it  has  long  been  held  by  the 
legislature,  that,  as  the  people  have  the  right 
to  petition  for  redress  of  grievances,  so  they 
have  the  right  to  state  what  they  consider  to 
be  their  grievances,  whether  they  are  really 

frievances  that  ought  to  be  redrnsed  or  not. 
he  general  rule  is,  that  however  unreasonable, 
or  unfit  to  be  granted  the  prayers  of  the  peo- 
ple in  their  petitions  may  be*  it  is  not  unfit  to 
receive  the  petitions,  and  the  people  have  a 
right  to  present,  them,  a  right  that  .is  unalie- 
nable. 

But  further,  if  the  right  of  petitioning  be- 
longs to  the  people,  they  must  of  necessity 
have  the  right  of  deliberation  upon  the  subject 
of  their  petitions,  to  consult  with  each  other 
at  public  meetings,,  to  be  advised  by  thoae 


n^ 


and  Thomat  Bmrijvr  SediUon. 


A.  D.  1817. 


C78 


vho  are  able  to  advise  (hem,  or  tMnk  them^ 
seWes  able,  upon  the  various  points  which  may 
ooeor  in  considering  what  are  grievances,  and 
what  are  not ;  and  if  there  are  grievances^  what 
are  tiie  remedite  that  ought  to  be  proposed  or 
prayed  for  in  their  petitions.  With  regard  to 
the  important  claims  which  may  be  made  in 
petitions  to  the  legislature^  every  man  neces- 
sarily must  have  a  right  to  meet  with  his 
fellows,  either  in  small  or  in  great  numbers, 
and  to  discuss  the  matter  with  them*  One 
man  may  think  that  annual  parliaments  ^re 
necessary ;  another  tlmt  they  would  be  hurt^ 
ful  or  impracticable.  On  this  trial,  it  is  not 
necessary  for  us  to  consider  whether  annual 
pdliaments  and  universal  sufitage  are  good  or 
CMid  ;  and,  on  this  occasion,  I  have  nothing  to 
do  with  these  questions.  But  I  say  that  it  is 
not  unlawful  to  petition  for  either.  And  ^ 
neraOy,  whatever  the  grievance,  or  fancied 
grievance  is,  it  may  lawmlly  be  the  subject  of 
a  petition  to  the  l^slature  ;  and  for  the  same 
leaaon  it  mav  lawfully  be  the  subject  of  deli- 
beration and  discussion,  even  in  public  meet- 
ings held  for  the  purpose  of  petitioning. 
You  vriU  observe,  that  there  can  be  no  limits 
to  this  right  of  petitioning,  and  previously  de- 
liberating; for  when  itislimitea  the  right  is 
gone.  Tbe  right  is  to  present  unreasonable 
as  well  as  reasonable  petitions.  Or  if  un- 
reasonable petitioningwere  unlawful,  the  leeis- 
latnre  alone  is  the  judge  of  what  is  reasonsmle 
or  unreasonable  in  ^titions.  If  the  right  of 
petitioning  could  be  restrained  by  the  courts 
of  law,  there  would  be  an  end  of  the  right  of 
petitioning,— a  fundamental  law  of  this  mo- 
naichy, — a  law,  the  palladium  of  our  other 
rights. 

On  iht  occasion  of  which  we  have  heard  so 
nndi,  when  the  people  in  and  about  Kilmar- 
nock met  to  consider  whether  they  should  send 
addresses  to  the  legislature  on  the  subject  of 
their  grievances,  various  speeches  were  made, 
and  we  are  told  by  the  prosecutor,  that  these 
speeches,  and  in  particular  the  speech  of 
M^Lareo,  were  seattious.  In  regara  to  the 
<|Destioii,  whether  or  not  his  speech  was  sedi- 
tMNiSy  he  pleads  that  the  right  6f  petitioning 
necessarily  implies  the  right  of  previous  dis- 
cDssion.  If  this  be  true,  apply  it  to  the'  case 
before  yon.  At  such  a  meeting  a  speech  may 
possibly  be  seditious,  where  it  appears  either 
that  the  meetine  was  called,  not  for  its  pro- 
fessed object  of  petitioning  Parliament,  but 
merely  to  aflbrd  opportunities  to  make  sediti- 
w»  speechea; — or  that  though-  the  meeting 
\ttmafidt  assembled  for  petitioning,  the  speech 
went  beyond  its  proper  bounds,  and  was  se- 
ditious in  statements  not  justified  by  the  oc- 
canoo.  As  to  the  first  ofthese  cases,  there  is 
not  even  a  pretence  for  denying  that  the  meet- 
ing in  qaestion  was  6011a  fidt  called  for  the 
purpose  of  framing  petitions  to  Parliament. 
1  refer  to  all  the  evidence  which  von  have 
beard.  It  was  a  meeting  collected  for  that 
purpose,  and  for  no  other,  nor  was  any  further 
purpose  ia  view. 


The  alignment  of  the  public  proseeotor,  said 
the  evidence  adduced,  will  apply  only  to  the 
second  case  supposed,  that  the  speakers  at  a 
meeting  hona  Jidt  assembled  for  petitioning, 
had  gone  beyond  their  bounds,  and  deviated 
into  sedition.  But  has  this  been  made  out 
against  Mr.  McLaren  ?  His  short  speech,  though 
coarse,  was  suitable  to  the  occasion,  as  an  ex« 
hortation  to  petitioning,  and  nothing  else. 

We  were  told,  indeed,  that  this  case  is  simi* 
lar  to  that  of  Fvshe  Palmer,  who  many  year* 
ago,  was  tried  for  sedition,  foond  guilty,  and 
sentenced  to  transportation.     But  ihiM  la  a  , 
total  mistake.    The  case  before  yon  is  Tery 
different  from  that  of  Fyahe  PbIomt,  and  from 
all  the  other  cases  which  have  hitherto  been 
tried  before  the  Court  of  Justidary.    It  has 
been  reserved -for  the  present  Lord  Advocate 
to  bring  jsuch  a  case  as  the  present  to  trial,  in 
which,  if  the  verdict  find  the  panels  guilty  of 
sedition,  the  right  of  petitioning,  hitherto  un- 
challenged, seems  to  be  attacked  almost  ia  di- 
rect terms.    The  case  of  Fyshe  Palmer  was 
that  of  a  seditious   libel,    an   inflammatory 
hand-bill,  containing  seditious  language,  with- 
out any  proposal  to  petition  Parliament.    We 
were  told  that  this   case  of  Fyshe   Palmer 
was  defended  on  the  same  grounds  that  were 
stated  in  defence  at  the 'beginning  of  this  trial ; 
yet  the  lord  advocate  declined  to  meet  thai 
defence  particularly,  and  bear  it  down  by  the 
triumphant  authority  of  Palmer's  case     There 
was  no  resemblance  between  that  case  and 
the  present.    Fyshe  Palmer  recommended  an 
appeal,  on  the  subject  of  grievances,  not  to  the 
legislature,  but  to  a  mob,  the  scum  of  the  earth 
in  the  neighbourhood  of  Dundee,-— to  the  so* 
verign  authority  of  the  multitude.    The  de- 
fence in  that  case  was  disregarded, — ^but  what 
was  it  ?  It  was  said,  that  in  this  free  govern- 
ment it  is  necessary  that  the  press  should  be 
free.    It  was  said  that  the  people  must  have 
freedom  to  attack  public  men,  and  must  be  en- 
titled to  publish,  not  treason,  not  sedition,  in 
a  palpable  form,  but  their  thoughts  in  a  free 
and  independent  manner.    It  was  added,  that 
Mr.  Fyshe  Palmer  was.  not  very  sound  in  his 
mind.     These  were  Uie   defences  for  hia. 
You  wiU  perhaps  be  surprised  when  I  tell  yooi 
that  m^  Lord  Abercromby,  who  tried  the  case, 
held,  m  bis  speech  to  the  Jury,  that  if  a  peti- 
tion to  Parliament  had  been  in  view,  the  libei 
of  which  Fyshe  Palmer  was  found  guil^  would 
not  have  been  of  so  aggravated  a  desoriptloD, 
— ^would  perhaps  not  have  beeu  considmd  a 
libel  ataA*    '<Mudi  (be  reinaiked)  has  been 
said  of  the  purity  of  the  intentions  of  the  so- 
ciety ;  it  is  said  they  had  nothing  in  view  bat 
moaerate  .reform.    But,  Gentlemen,  you  .will 
consider  how  (ar  that  is  consistent,  either  vritii 
the  tenor  of  the  address  itself,  or  widi  what  is 
sworn  to  by  Mealmakeri  who  drew  the  first 
draught  of  it,  and  who  swears  expressly,  that 
at  that  time  he  had  no  second  petition  in 
his  contemplation' and  that  what  was  after- 
wards   to    DC   done    would   have  depended 
upon  eircumstanees.    I  much  fear  that  here 


57  6£0BGB  HI. 


791 

)feftl»iker  »  (iriliiig  tfat  tnAp  aad  tWt  if 
Ibegr  had  not  been  altettded  to^  the  conduct 
of  Ihis  lociety  would  not  kave  proved  so  pure 
«•  their  iateotiotis  ai«  said  to  iMtre  been ,"  *  In 
tbat  C«i6t  fott  will  obsfenwy  that  a  seditkNis  li- 
bel wit  diapeised  over  the  couDtir  without 
aiijt  GOnsequeoce  betnf  cdBteMplated  bat  that 
of  inAanuDg  the  ninds  of  the  multitude.  On 
the  other  MtoAf  we  bave  been  at  paiu  to  shew, 
that  the  panels  in  tfaia  ease  were  quiet  oiderly 
persenty  net  eoacemed  witb  any  seditioue  ao- 
oieties;  not  connected  with  any  political  parttet, 
only  feelkg  distress  thinking  they  had  grier* 
anees  to  eemplain  of^  and  that  tbrf  could  bet^ 
tsr  tbefar  ftituaitions  by  petitioning  parliament. 
Xbef  met  together  in  the  moet  orderly  man- 
neiv-^dellbemted  as  it  is  usual  to  do  in  public 
meetings^ — ^prepared  resolnftionSy-^prepared  a 
petitioa,— and  atgned  ity-^and  that  ^tition, 
Ibougb  couched  in  strong  tenna,  was  presented 
In  the  Houses  of  Pariiament,  considered^  re* 
eeivedy  and  laid  on  their  tables.  Is  the  right 
tf  petitiening^tben,  to  be  interrupted  in  this 
entraordina  rymanner,  by  bringing  the  peti- 
tioners into  tbe  Conrt  of  Justiciary  9 

RecoUet  that  this  was  a  meeting  for  consider- 
ing tbe  propriety  of  petitioning  £e  legislature^ 
and  that  the  meeting  would  have  been  allOM 
gather  nugatory  unless  the  persons  tbeu  met 
bad  been  allowed  to  state  thmr  opinions  to  one 
another.    Ih  the  first  pi^  of  this  indictsMnt, 
dm  panel  is  chdoged  with  baring  wickedlv  and 
leWniously  delivered  ^<  a  speech  coutaining  a 
number  of  sedttiens  and  inflamoiatory  remarks 
and  assertions^  eakulated  to  degrade  and  bring 
iota  coatdmpt  the  Oovemment  and  legislature^ 
and  to  witham^  therefrom  the  confidence  and 
aibctiotts  of  the  people,  and  to  fiU  tbe  realm 
witb  trouble  and  disseiitien.''     Gentiomen» 
vheiever  the  people  are  exposed  ts  grievanees 
U»ey  aeeewariJy  must,  when  tbey  meet  to  con- 
sider the  means  of  redrem,  exprem  their  sense 
of  these  grietances ;  and  I  ask  whether  H  be 
possible  10  state  public  grievsinces,  especiaUy 
grievanees  arising  from  sndk^  a  souroe  as  over* 
lantion^  iritboiit  in  soose  w^  or  other  reflect* 
ing  on  the  Government*    In  the  exercise  of 
our  right  of  petilioning  a^sinst  grievances^ 
these  grievances  must  be  fAentionod(  and  U 
isisspomiUe  to  B^ntisn  them^    or  even  to 
allude  to  thein,  without  briuging  tks  Govet»« 
SmM  into  discredit.    For  exam^  let  a  peti* 
lion  be  ptesented  against  ovcr*taxati#n»  What^ 
ever  were  the  causes  of  the  evil^*-wars  just 
«ran)us^ — unavoidable  misfortunes^  or  mis- 
•onduetin  public  afiaits^^^  is  lawful  to  state 
the  grievnnce.    But  can  it  be  steted  withont 
aiElcliBto  mure  or  less^  of  attempting  to  ^iffest 
Ae  public  opinion  su  tathe  mentsor  demerits 
«f  adminietintieQ?    Every   piAHe  stateiaeni 
mspeeting  pufalie  afidis  has  that  tendency. 
Bat  are  the  people  to  be  interrupted  on  soeh 

r lands,  in  tbe  execcise  of  their  just  rights . 
ii  of  the  essence  of  their  right  to  cooBfiain 


Trial  ^Alixanier  McLaren 


[S0 


*  Fysbe  Palmer's  oase  %  How. 
*■     371. 


Mod.  St 


of  grievgnces,  and  therefore  I  approAkend  yo« 
must  disregard  entirely  those  general  expres- 
sions in  the  iodlctment,  charging  McLaren's 
speech  as  tending  to  bring  the  Government 
into  contempt.  Tbe  petitionea  felt  griev-> 
ances ; — tbey  prepared  petitions,  and  it  is  im- 
possible to  state  a  puohc  grievance  without 
throwing  blame  upon  the  Government.  I  do 
not  mean  to  examine  the  question,  whether 
there  really  was  any  blame  attachable  to 
Government ;  for  it  is  the  same  thing  in  thin 
case  whether  the  petitioners  were  right  or  wrong 
in  their  statement.  My  defence  is,  that  the/ 
were  in  the  fair  prosecution  of  legal  views. 
Suppose  no  words  to  have  been  uttered  but 
what  would,  in  other  circumstances,  have  beeis 
considered  seditions,  their  baring  had  a  righC 
object  in  view  is  a  good  de£mce.  But  every 
sort  of  obloquy  has  been  thrown  on  the  petiti-> 
onersy  without  any  notice  of  the  lawful  object 
tbey  bad  in  riew,  as  if  tlieir  object  were  to  be 
kdd  entirely  out  of  consideration. 

The  legality  of  the  object,  and  the  situariom 
in  which  tbe  speeches  were  uttered,  ate  tbe 
most  important  eircumstances  of  the  case. 
Every  thiing  else  is  of  a  trivial  and  subordinate 
nature.  But  let  us  see  what  tbe  panel  is 
alleged  te  have  sai4*  No  positive  evidence 
has  been  adduced  te  prove  any  part  of  hie 
speech,  except  a  few  words  at  the  end  of  the 
passage  quoted  in  the  indictment,  and,  so  for 
as  I  bave  observed,  you  have  only  the  uneer* 
tain  evidence  of  one  person  to  these  words* 
I  shall  remark  upon  the  words  in  the  indiel« 
ment. 

'*  That  our  sufoings  are  insupDorte.blc^  ie 
demonstrated  to  the  world.''  I  ao  not  amy 
whether  Uieir  sufferings  were  insupportable  or 
not ;  but  tbey  appear  to  have  been  sevcfre^  and 
tbe  pec|)le  were  met  for  the  purpose  of  cob* 
sidering  them,  and  to  join  in  petitioning  fmg 
relief.    Here  I  presume  is  no  sedition. 

"  And  that  they  are  neither  temporary,  aer 
occasibned  by  transition  from  war  to  peace,  in 
palpable  to  all,  though  all  have  not  the  courage 
to  avow  it.''  I  do  not  say  that  proposition  in 
palpable  to  eveiy  body.  Some  are  daspeeei 
to  tnink  that  the  calamity  has  been  occasioned 
in  consequence  of  the  sudden  transition  fmna 
war  to  peace,  and  some  dispute  that  propo* 
sition.  Some  are  of  opinion,  that  if  we  bad 
continued  tbe  war,  at  an  expense  of  a  hundred 
millioos  a  year,  we  should  have  infolUbly  se* 
cured  the  national  prosperity  and  greatneas* 
I  shall  not  attempt  to  settle  these  points,  not 
is  that  neeessaiy  to  the  present  argument^  and 
t  beg  leaive  to  protest  against  the  idea  that  I 
give  any  opinion  upon  them  at  all.  Peibnpt 
Mr.  McLaren  may  include  me  in  his  censure 
for  my  went  of  courage  in  not  avowing  m^ 
opinion. 

**  Tbe  fact  is  ire  are  ruled  by  men  only  s<h 
licitous  for  tbeir  own  aggrandisement;  and 
they  care  no  further  for  the  great  body  of  the 
people,,  tban  they  are  subservient  to  their  ovns 
accursed  purposes.  If  you  are  convinced  of 
this,  my  countrymen^  I  would  therefore  pu) 


81] 


and 


Bairdjbr  SedUion. 


A.  D.  1817. 


[83 


Ike  i^itetUoQ,  we  jcn  degeeerate  enough  to 
bear  it  ?    Shall  we,  whose  forefathers  set  limits 
to  the  all  graspisf  power  of  Rome ;  shall  we, 
whose  forefatheiVf  at  the  never-to-be-forgptten 
field  of  fiaanockbuniy  told  the  rotghty  Edward, 
at  the  bead  of  the  most  mighty  army  ever  trod 
•D  Brilaio  s  soil,  ^  Hitherto  shalt  thou  come, 
eod  no  farther  ^  shaH  we,  I  say,  whose  fore> 
fatheis  defied  the  efforts  of  foreign  tyranny  to 
enslare  our  beloved  country,  meanly  permit,  in 
our  day,  without  a  murmur,  a  base  Oligarchy 
to  feed  th^r  filthy  Termin  on  our  vitals,  and 
rule  us  as  th^y  will  ?    No,  my  countrymen/' 
A  commentary  was  made   on  this  passage 
though  it  is  not  proved  that  the  panel  ever 
spoke  it.    The  prosecutor  takes  it  for  granted, 
without  evidence,  that  the  words  were  spoken. 
I  am,  therefore,  not  under  the  necessity  of  de- 
fending these  words.    But  are  they  in  reality 
so  culpable  ?    Are  they  seditious  ?    They  are 
mere  words  of  course,  in  expressing  those  pub- 
lic <  grieTances   to  which  they  refer.     Every 
child  knows  that  they  are  the  common  and 
hackneyed  terms  used  by  petitioners  for  public 
reform,  and  (excepting  one  or  two  allusions*  in 
whidi  there  is  evidently  no  sedition),  if  they 
are  not  tame  and  feeble,  they  are  at  least  neither 
seditious  nor  inflammatory.    Every  word  ap- 
plies to  the  professed  object  of  the  meeting  m 
petitioning,  and  to  no  other  object.    The  pro- 
secutor applies  some  of  the  words  to  the  king, 
but  this  is  a  misconstruction  quite  unworthy  of 
my  lord  advocate.    Ministers,  and  the  pos- 
sessors of  borough  interest*  are  the  vile  Oli- 
garchy, who  are  said  to  feed  their  filthy  vermin 
OQ  our  vitals,  and  rule  us  as  they  will,  and  tliis 
attack  was  justifiable  in  the  way  it  was  made. 
What  would  avail  the  right  of  petitioning,  if 
there  was  no  right  to  petition  against  his  majesty's 
ministers  and  their  partisans  ?    Ministers  may 
be  impeadted  in  parliament  for  their  public  con- 
duct, and  they  may  be  complainea  of  by  the 
people  in  their  petitions.    Are  petitions  to  par- 
liaiDent  against  ministers  to  be  punished  ^a 
sedition  ?    What  hare  we  here  ?    The  opinion 
of  the  panel  that  the  ministers  have  not  acted 
in  an  honest  way,  or  as  ministers  ought  to  do. 
The  opinion  is  expressed  a  little  strongly,  but 
it  does  not  go  beyond  legal  bounds.    The  pe- 
tition was  uterwards  laid  before  parliament, 
and  was  received  with  respect.    Now  the  ques- 
tion before  yon  is  not,  whether  the  ministers 
are  culpable  or  not — not  whether  lord  Castle- 
reagh  or  Mr.  Vansittart  might  bring  an  action 
fcr  a  libel  or  defamation— but  whether  there  is 
any  sedition  in  this  speech.     I   ask    you, 
whether  there  is  any  sedition  in  complaining 
of  these  ministen  ?    Sedition  is  an  attack  on 
the  sovereign  of  the  state— an  attack  on  the 
government,  not  on  the  ministers  of  the  go- 
▼emment.    Yon  may  attack  the  latter  in  any 
way>  without  being  guilty  of  sedition. 

Kit  luther,  as  to  the  passage  about  the 
Oligarchy.  It  is  generally  understood  that  a 
few  penons,  not  exceeding  300,  are  possessed 
of  an  influence  in  the  House  of  Commons  that 
a  very  pernicious  to  the  state.  Thia  is  the 
VOL  XXXUL  I 


Oligarchy,  the  government  of  a  ihw  by  uneoiH 
stitutional  influence,  alluded  to  in  the  paner^ 
speech.  Is  it  sedition  to  take  notice,,  even  by  ' 
allusion, of  such  a  public  grievance?  ]^  this 
sedition?  Against  whom  is  it  sedipon? 
against  d^  Kingl  against  the  Lords?  against 
the  Commons  ?  against  any  branch  of  the  legis- 
lature, or  against  the  legislature  taken  as  a 
whole?  it  is  sedition  against  no  person  or 
legal  authority  whatever.  It  is,  indeed, 
directed  against  the  Oligarchy  itself,  which, 
in  the  opinion  of  the  petitioners,  is  the 
worst  «nemy  of  the  King,  Lords  and 
Commons.  The  King,  Lords  and  Commops 
ought  to  be  independent ;  and,  if  an  uncon- 
stitutional influenoe  rules  over  them,  is  it  se- 
dition to  oomplain  of  that  influence  ?  Every 
friend  to  the  constitution  will  complain  of  it, 
if  he  supposes  it  to  exist.  I  apprehend  there 
is  nothing  in  this  part  of  the  charge ;  and  while 
M'Laren  denies  having  used  these  expressions 
about  our  rulers,  I  say  there  is  no  sedition  in 
them,  i  would  say  so,  even  if  the  words  had 
been  used  where  no  petition  to  the  legislature 
was  in  contemplation.  But,  considering  that 
the  meeting  was  called  for  that  purpose,  * 
nothing  can  be  more  unquestionable  thaa  that 
such  langpuage  was  not  seditious. 

I  come  now  to  the  last  of  the  words  quoted 
in  the  indictment,  and  I  hope  to  satisfy  you 
that  there  is  nothing  seditious  to  be  found  in 
them.     Allow  aoe   here   to  remind   you   of 
McLaren's  situation  when  he  made  (his  speech. 
It  has  been  proved  that  the  task  of  opening  the 
meeting  was  imposed  on  him,  contrary  to  his 
inclination,  and  came  upon  him  rather  unex- 
pected ly .    It  was  indeed  proposed  to  him  eight 
days  before  the  meeting,  but  he  was  unwilling 
to  undertake  it,  and  immediately  before  the 
meeting  he  pressed  Mr.  Samson  to  take  the 
business  off  his  hands.    An  hour  before  the 
meeting  Mr.  M'Laren  was  again  urged  to  open 
the  business;  and   being  in   soma  measure 
compelled  to  it,  he  retired  for  a  very  short  time, 
and  made  some  notes  of  his  short  address  to 
the  meeting.    You  will  see  in  the  whole  pro- 
ceeding t^e  most  evident  marks  of  haste.    It 
is  not  proved  that  the  last  sentence  was  written 
in  his  notes.     On  the  contrary,  it  was  not 
written.    Ue  was  placed  on  what  is  called  the 
hustings,  and  delivered  his  speech  during  a 
storm  of  wind,  rain  and  hail ;  from  the  noise 
of  which,  and  particularly  from  the  rattling  of 
the  hail  on  umorellas,  it  was  almost  impossible 
to  hear  what  he  said.    Besides  the  words  con- 
tained in  his  notes,  part  of  which  he  spoke,  and 
part  of  which  he  omitted,  he  spoke  other  words 
which. were  not  in  his  notes.     What  these 
words  were  is  uocertain,«as  they  could  not  be 
perfectly  heard.    A  single  witness  told  you  be 
heard  and  recollected  them,  though  he  could 
not  recollect  any  other  words  of  the  panel's 
speech.     There  is  no  great  reason  to  rely 
on  the  recollection  of  the  witness,  though 
there  is  much  reason  to  presume  that  the 
words  had  not  the  meaning  given  to  them 
by  the  publie   prosecutor.     The   words   in 
G 


837 


57  GBOROE  til. 


mat  i^AbamUfiKr  M*lMtK 


fM 


the  indictment  tre,  ^  thoald  be  be  to  infatuated 
as  to  turn  a  deaf  ear  to  their  just  petition^  he 
has  forfeited  their  allegiance.  Yes,  ny  feUow- 
townsfnen,  in  such  a  case,  to  heU  with  our 
allegiance."  But  the  passage  is  in  different 
words  according  to  the  etidenee  oJT  Mr.  Finnic, 
whose  recollection  of  words,  deliyered  in  the 
midst  of  hail  and  wind,  and  the  noise  of  um- 
brellas, while  nobody  else  could  hear  what 
McLaren  was  saying,  is  the  only  evidence  for 
the  prosecutor  of  me  sedition.  Aaother  wit- 
ness saijd  there  was  something  in  the  speech 
about  hell  and  allegiance,  but  he  could  gi?e  no 
intelligible  account  of  the  passage. 

Now,  is  it  probable  that  the  panel  should 
have  so  expressed  hfmself,  or  is  it  proTed  that 
he  used  the  words  imputed  to  him  ?  You  see 
the  rest  of  the  speech  does  not  appear  in  the 
same  mutilated  form  with  the  pas«^  given  by 
Mr.  Finnic.  There  is  reason  to  bebeve,  there- 
fore, that  the  passage  so  mutilated  is  not  the 
passage  deliyered  bv  McLaren.  And jret  ^ou 
are  called  upon  tpt  rely  imnlicitly  upon  Finme,  a 
single  witness,  to  the  woras  of  a  speech,  though 
there  was  such  a  noise  when  it  was  detiver^ 
that  persons  near  the  orator  could  not  hear  him : 
And  this  part  of  McLaren's  speech  is  said  to 
have  been  seditious.  Gentlemen^  you  must 
always  bear  in  mind  the  occasion.  No  otiter 
passage  of  the  speech  was  seditious.  McLaren 
was  recommending  a  petition  to  the  Prince 
BegenL  He  was  speaking  of  his  royal  high* 
ness  in  the  most  respectful  way^  and  in  a  warm 
strain  of  ]<mlty.  '^  Let  us  lay  our  petitions  at 
the  foot  of  the  throne,  where  sits  our  august 
prince,  whose  gracious  nature  If  ill  incline  his 
ear  to  listen  to  the  cries  of  his  people."  Here 
is  the  fondest  expectation  of  being  listened  to. 
But  it  is  natural  to  mingle,  with  the  kindest 
and  most  dutiful  sentiments,  the  severity  of 
doctrine  and  reasoning^  and,  on  this  occasion, 
it  is  possible  that  the  rigour  of  our  constitu- 
tional law  for  extreme  cases  may  have  sud- 
denly occurred  to  the  mind  of  the  panel.  We 
all  know  that  our  constitutional  rignts  and  du- 
ties go  hand  in  hand.  This  has  been  stated  in 
everr  possible  form  in  which  a  proposition  of 
the  kind  can  be  staled.  At  the  Revolution, 
the  Ixnds  and  Commons  held  James  to  have 
abdicated  the  throne,  merely  because  he  left 
ib«  country^  and  the  illusthous  house  of 
Hanover  wsi  at  last  established,  because  James 
ha^tailed  in  the  duties  he  owed  to  his  subjects. 
Again,  in  Scotland,  it  was  not  held  that  J  ames 
had  abdicated^  but  that  he  had /MrfeiteJ  the 
throne  in  eonsequence  of  his  proceedings. 
Speculations  on  the  iuliject.  indeed,  aredeticate, 
and  ought  not  to  be  mudi  indulged  in.  But 
what  was  more  natural  than  for  M'Laren  to 
urge  the  propriety  of  petitioning,  by  stating 
thatithe  petition  would  of  course  be  received, 
and  that  if  the  regent  did  not  regard  the  cries 
of  all  liis  people,  he  would  forfeit  their  alle- 
giance ?  M'Diren  did  not  say  it  was  the  duty 
of  the  Prince  Regent  to  listen,  right  or  wrong, 
to  the  petition  then  proposed.  In  thi»  way  the 
whole  passage  is  not  so  unreasonable;  and 


where  there  is  anuoeertainCy  what. the vuif 
words  weN|  the  moat  &v6uiuble  interpretatte» 
must  be  given  to  them. 

But,  in  the  worst  view  of  the  words,  they  im- 
port merely  that  in  an  extreme  case,  whick 
could  not  happen,  allepp  ance  vfonid  not  be  due,, 
and  such  an  alternative  does  not  import  ie*^ 
dition.  If  the  words  were  imprudent,  diey 
were  not  seditious.  They  might  indeed  hav€: 
been  without  a  vindioation,^  if  they  haid'  becnr 
used  at  a  public  meeting  where  no  such  woid» 
were  warranted  bv  the  occasion,  and  where  thA- 
me^nig  was  not  mr  the  purpose' of  petitioniBg' 
paritament.  But  consiaer  the  time  when  the 
vrords  were  used.  The  recommendation  of 
ray  lord  advocate  to  this  effect  was  cratir 
correct,  and  I  desire  you  to  keep  in  mind  tbaft 
Uiere  was  a  petition  at  the  time  under  consider 
ration,  and  that  expressions  might  then  be- 
more  allowable  than  at  another  time.  The^ 
sacred  right  of  petitioning  is  the  bulwark  of  the 
right  of  free  discussion.  Discussion  may  be 
idlowed  preparatory  to  a  petition,  that  would 
npt  be  endured  at  any  other  time.  Discussion 
ia  necessary  on  aU  such  occasions^  Free  words- 
may  on  tb^e  occasions  be  used  when  speaking 
of  ministers,  and  generaHy  of  public  men,  af 
well  as  of  public  measures.  Are  not  these 
propositions  self-evident?  Supposing  it  were 
asked,  whether  any  of  you  have  a  right  to  write 
a  letter  to  a  correspondent,  and  send  it  by  the- 
post.  The  answer  would  be,  you  have  a  risbt 
to  do  so ;  there  is  no  law  against  it  But  what 
if  you  have  no  right  to  use  pen^  ink,  and  paper  ; 
no  right  to  lift  the  pen,  to  put  it  in  the  mk* 
holder,  or  apply  it  to  the  paper  f  These  acts 
have  the  same  relation  to  writing  a  letter,  thaft 
the  right  of  canvas8in|^  what  are  ffrievmicea  has 
to  the  right  of  petitioning,  x  ou  hkve  the 
right  of  petitioning,  which  includes  the  right 
of  meeting  and  canvassing  the  subject  of  your 
petition.  Thus  the  right  of  discussion  is  pre- 
supposed  in  the  right  of  petition. 

-  As  to  the  lan^age  that  is  legal  and  warrant- 
able in  petitioning  and  previously  discussing 
the  mode  of  petition,  it  is  well  known  that 
parliament  may  be  approached  with  language 
as  strong  as  any  part  of  this  pamphlet,  and  cep- 
tainly  stronger  than  any  part  of  the  speech  oT 
the  panel.  As  evidence  of  this,  take  tM  votes 
of  uie  House  of  Commons,  and  yow  wilt 
iind  more  violent  and  bitter  expressions  of 
grievances,  than  any  in  this  publication.  I 
may  read  one  or  two  of  thes^  petitions,  which 
have  been  appointed  by  die  House  to  lie  en 
the  table,  and  which  the  House  would  not 
have  thoi^t  itself  bound  to  receive,  if  they 
had  considered  Uie  language  as  improper  in  a 
petition  to  pariiament*  I  hope  Mr*  Orent  will 
be  allowed  to  read  them  for  me. 

Mr.  Gnm/. — This  is  an  extract  of  a  petition 
from  Bristol,  presented  to  the  House  of  Com- 
mons on  the  29th  January  U317  [JSeoii  from 
the  Vote$1.  ^  That  no  man  of  sincerity  will 
affect  to  believe  that  such  a  squandering  of  the 
resources  of  the  country  for  such  purposes,  and 


tMiBf  It  piM«d  in  th«  negative.**  And  an* 
other  from  the  inhabitants  of  Delph  was  pre* 
sented ;  [fvedi]  "  And  a  motion  oein^  made, 
and  the  question  being  pnt,  that  the  said  peti« 
tion  do  lie  «poa  the  taUe,  it  passed  in  the 
negatiTe.*^ 

On  the  8l8t  Januaiy,  a  petition  from  the 
town  of  Usliiaz  was  presented  and  read,  sett- 
ing forth,  [reocb]  **  It  is  now  notorious  that 
the  people  of  tnis  kingdom  do  experience 
flagrant  wrongs  and  neat  misfortunes^  be- 
cause their  birthnofat  of  making  their  own  laws 
has,  through  the  decaY  of  ancient  boroughs,  at 
well  as  through  fraud  and  usurpation,  been 
taken  from  them ;  for  it  is  ttniversallY  known 
that  the^  nation  are  not  represented  in  the 
House ;  in  this  complication  of  decay,  injustice, 
and  wrong,  in  this  rain  of  the  constitution, 
wheieby  &e  people  have  been  defrauded  of 
the  seif-preserring  power  of  making,  through 
real  cepresentatiTes,  their  own  laws,  the 
House  must  see  the  causes  of  which  all  the 
present  calamities  of  our  country  are  the  ef- 
fects :  here,  and  here  only,  the  cause  of  war, 
here  the  cause  of  public  debt,  here  the  cause 
of  an  intolerable  taxation. — The  law,  through 
ih^  r^tless  power  of  those  who  have  usurped 
the  seats  in  the  House,  assumes  a  severity  re- 
volting to  humanity,  and  is  carried  into  exe- 
cution by  the  bayonet;  wherefore  the  peti- 
tioners feel  it  to  be  their  duty  to  protest  against 
that  corrupt  and  factious  ustirpat^on  of  seats  in 
the  House,  by  which  all  fr^eaom  is  destroyed^ 
and  our  unimppy  country  is  threatened  with 
convulsion,  slavery,  or  subjugation ;  for  in  a 
usurpation  which  inflicts  on  the  whole  com- 
munity taxation  without  representation!  nought 
but  despotism  can  be  discovered.'' 

"  A  petition  of  the  there-undersigned  inha- 
bitants of  the  town  and  neighbourhood  of 
Halifox,  in  Yotkriiire,  was  also  presented  and 
read;  containing  the  same  allegations  and 
praver  as  the  last  preceding  petition. — And  the 
said  petitions  were  orderea  to  lie  upon  the 
table?* 

There  are  many  other  petitions  which  I  may 
read  couched  in  equally  strong  language. 


•ft] 

llMJt  wtA  n  deatlveiifepowcr  in  the  managers 
«f  paper  money,  wonhi  ever  have  existed,  if 
.^e  members  of  the  Hoose  of  Commons  had 
-becD  the  real  repiesentatives  of  the  people, 
instead  of  beings  as  they  notoriously  are,  the 
jnete  coob  of  an  ever-grasping  and  tyrannical 
Ollgaidiyof  boconghmongers ;  that  it  is  in 
'vain  to  hc^  for  any  veal  remedy,  for  anjr  solid 
and  sabstuitial  relief  except  throngh  the  means 
•of  such  a  reform  in  the  Commons  or  people's 
House  of  Pariiament  as  shall  ensure  to  the 
people  Um  speaking  iof  their  will  throng  the 
-menna  of  representatives,  annoaUychosen  by 
all  men  who  have  attained  the  age  of  twenty- 
one  years,  seeing  that  all  men  pay  taaae,  and 
dmi  aU  men  have  fives  and  liberties  to  pro- 
eecti  Ordeted<hat<he  said  petition  do  Ue  <on 
ihetaUe." 

Ob  the  fame  day,  a  petition  from  the  iewn- 
ehip  of  Qoik:k  was  presented  and  read,  but  it 
appears  to  have  ■contained  expiessions  which 
were  deemed  otfensivje,  for  [reaA  from  the 
yaia']  **  a  motion  being  made,  and  the  ques- 
tion being  put,  that  the  said  petition  do  lie 
vpOB  the  table,  it  passed  in  the  negative.** 

On  the  same  dav,  the  address  and  petition 
4if  the  townof  (Xdham  was  presented  and  read, 
in  vrinch are  the foUo wing  expressions:  Ffeodiij 
'^  In  the  midst  of  all  these  calamities,  toe  lofr- 
uisteiB,  m  coinunction  with  an  unconstitntional 
and  corrupt  House  of  Commons,  have  pro- 
geeded  to  vote  away  a  great  part  of  the  puoUc 
■MNiey  to  superfluous  and  unnecessary  pur- 
(poses,  die  whole  of  which  evils  die  petitioners 
ascribe  to  the  want  of  a  real,  unbiassed,  i^, 
lawfril,  and  annual  election  of  the  members  of 
die  Commcms  Hotise  of  Pariiament^  instead 
4if  vrfakfa,  the  petitioners  see,  in  that  House, 

Speets  and  other  boioughmongers,  hundreds 
Its  seats  usurped ;  that  numbm  more  of 
thoee  sealSy  through  the  gross  venality  of  mo- 
AOpoliang  eerporators,  are  notoriously  bought 
and  sold,  and  a  laige  portion  of  the  members 
of  that  House,  who  ought  only  to  sit  there  as 
repfeeenlatives  of  die  people,  are,  nevertheless, 
piaoemen  and  pensioners  cC  the  «rown,  and 
veeeivc^  insrianesand  emoluments,  upwards 
of  t0O,000l.  a^yearout  of  the  taxes;  where- 
fore the  petitioners  feel  it  to  be  thdr  duty  to 
proceat  sigainst  diat  corrupt  and  factious  usurp- 
jrtioit  of  seat*  in  that  House,  by  which  freedom 

fiid  our  once  happy  countnr 
Lh  slavery,  starvation,  codvuW 
and  luia;  for,  in  an  usurpation  which 
iaidiets  on  the  whole  coBsmunity  taxation  witb- 
ooft  repKsentation,  nouaht  but  despotism  can 
he  discovnrad,  nought  but  rain  can  proceed. 
Jkad  the  said  peddo9ft  were  orderea  to  lie 
wpOB  the  fable.*^ 

Immediately  after  ^diich,  it  appears  that 
£rcedi]  '^  A  petition  from  Ashton-under-Iine 
was  presentea  and  read,  containing  the  same 
sJlegations  and  prayer  as  the  petition  of  the 
inhaliitaafs  of  the  township  or  Quick,  which 
was  fbts  di^  presented  to  tne  House.  And  a 
motion  being  made,  and  the  question  being 
XfBtLp  thm  the  laid  petition  do  lie  upon. die 


Mr.  CMb.— I  think  enough  has  been  read, 
and  we  need  not  latignethe  Court  and  the 
jury, 

Mr.  Gr«n^«-Particula»ly  on  die  12th  of 
March  I  see  there  are  several  petitions  received 
in  the  same  terms  with  the  petition  from 
Halifax. 

Mr.  Clerk, — This  is  but  a  specimen  of  the 
petitions  which  have  been  sent  to,  and  received 
oy  parliament.  'Such  axe  not,  indeed,  petitions 
whidi  the  House  of  Commons  is  disposed  to 
grant.  But  the  privilege  to  think  and  talk  on 
diese  matters,  to  take  advice  about  them,  to 
hold  meetings  about  them,  and  to  make  them 
the  subjects  of  speeches,  resolutions,  and  pe- 
titions, unquestionably  belongs  to  the  people 
of  tfair  country.  The  right  ofpetxtioning  is  so 
sacred,  that  Uie  most  overbearing  and  arbi- 


871        57  GEORGE  Hh 


rr»a 


traiy  administrations  hava  never  proposed  to 
restrict  it  altogether.  You  will  pause,  then, 
before  jou  prooooooe  a  verdict,  which,  as  the 
public  prosecutor  demands  it»  wottkl»  in  terms 
almost  direct,  be  a  verdict  against  the  right  of 
petitioning:  for  the  same  argument  that  has 
been  urged  against  the  panel  would  apply 
against  speeches  relative  to  petitions*  conj^ 
plaining  of  any  other  public  abuses,  if  the 
distresses  of  the  people  should  be  never  so 
great — abuses  against  which  ne  i^nnedy  conld 
be  looked  for  but  by  petitioning  the  legislature, 
and  stating  the  grievances  in  the  language  of 
to>utfa.  Were  such  a  pestilence  i0  be  intro- 
duced in  ^is  part  of  the  island,  as  prosecu- 
tions to  subvert  the  right  of  petitioning,  the 
consequences  would  indeed  be  calamitous. 
The  right  of  petitioning,  so  tenaciously  held 
by  our  ancestors,  may  l^  still  more  necessary 
to  our  posterity.  The  present  case  ought  not 
to  have  been  prosecuted,  even  if  the  words 
had  been  more  inflammatory  than  they  are. 
It  has  no  resemblance  to  a  case  of  sedition. 
In  the  case  of  Muir,*  and  a  variety  of  .others, 
in  which  men  were  tried  and  punisHed  for 
sedition,  a  wicked  purpose  was  always  clearly 
established,  and  the  accused  had  no  pretence 
for  saying  that  they  looked  toward  the  legis- 
lature for  the  accomplishment  of  their  objects. 
The  ipoment  that  such  a  bona  fik  purpose  is 
in  view,  the  eubject  has  a  right  to  express  his 
opinion,  and  he  cannot  be  subjected  to  punish- 
ment for  it.  If  he  could  be  punished,  the 
right  of  petition  would  be  at  an  end. 

Gentlemen,  the  panel  is  a  person  of  irre- 
proachable character,  and  his  former  history, 
and  in  particular  the  loyalty  and  public  spirit 
of  his  conduct  on  all  occasions,  leave  no  room 
for  any  presumption  that  he  would  be  inclined 
to  seditious  practices. 

£Mr.  Clerk  then  read  the  following  jcertir 

ficates :] 

Kilmarnock,  2nd  April,  1S17, 
This  is  to  certify,  that  Alexander 
McLaren  has  resided  in  my  house  as  a 
lodger  for  the  space  of  seven  years  against 
May  next,  behaving  himself  soberly  and 
honestly,  free  from  wrangling  or  quarrel- 
ling, and  as  a  loyal  subject,  speaking 
respectfully  of  government,  and  all  other 
rulers  in  their  different  stations,  so  far  a^ 
is  known  to  me. 

John  Stratrern,  wright. 

EHmamock,  2nd  AprU^  1817. 
.This  is  to  certify,  that  Mr.  Alexander 
McLaren  has  resided  in  Kilmarnock  for 
upwards  of  eiffht  ^ears,  and  has  been  se- 
,  veral  years  in  habits  of  intimacy  with  the 
undersigners ;  and  during  that  time,  to 
the  utmost  of  our  knowledge,  has  behaved 
in  a  sober  and  peaceable  manner ;  at  all 
tiroes  has  been  a  loyal  subject,   a  finp 


2  How.  Mod.  St.  Tr.  ^17. 


fneod  of  order,  and  a  habitiAl  respecter 
of  authority. 

JoBH  Stratheiih,  wiight. 

James  Al£xa3«j)Er,  9tn,  weaver. 

John  Buntin,  weaver. 

Wm.  Howie,  builder. 

Geo.  Smith,  grocer. 

John  Paxton,  brewer. 

James  Craig,  weaver. 

James  Buntin,  shoemaker. 


Mr.  Jeffre^j^^YovL  are  aware,  gentlemen, 
that  it  is  now  my  duty  to  address  you  on  the 
part  of  the  other  panel ;  and,  after  what  yoit 
nave  already  heard,  and  Ihe  ample  opportunity 
you  have  had  to  consider  the  whole  of  the  evi* 
dence  during  the  trial,  I  flatter  myself  I  shall 
be  able  to  discharge  this  duty  without  en* 
croaching  much  longer  on  your  time.  I  wish, 
first,  to  address  a  word  or  two  to  you  on  the 
facts  of  the  case,  and  to  lay  before  you,  in 
a  detached  form,  those  that  relate  to  this 
panel,  Thomas  Baird— >after  which  I  must 
trouble  you  with  a  few  words  on  what  I  ood- 
ceive  to  be  their  reasonable  and  legal  import. 

It  is  one  comfort  in  this  case,  surrounded  as 
it  is  with  discomforts  and  anxieties,  that  with 
regard  to  the  facts,  there  can  be  no  reasonable 
doubt  in  your  minds ;  nor  am  I  aware,  indeed, 
that  upon  this  part  of  the  subject  there  is  any 
great  contradiction  between  the  opposite  sides 
of  the  bar.  And,  therefore,  I  shall  give  but  a 
slight  abridgement  of  the  facts,  separating 
those  which  apply  to  this  individual,  tJie  truth 
and  import  ot  which  I  do  not  conceive  liable 
to  any  question. 

You  will  remember,  it  has  been  put  in  evi- 
dence before  you,  that  he  is  a  man  in  a  good 
condition  in  life,  which  is  denoteitl,  indeed,  by 
his  appearance.  He  is  in  reality  a  most  re- 
spectable person,  who  had  long  resided  in  the 
town,  among  whose  citizens  he  had  taken  an 
active  part  on  this  occasion ;  and,  even  in  the 
judgment  of  those  who  differed  from  him  in 
opinion  on  political  subjects,  and  who,  from 
their  official  situation,  had  the  power  and  the 
duty  to  prevent  him  from  committing  any 
wrong,  he  was  universally  esteemed  incapable 
of  harbouring  evil  intentions  against  the  con- 
stitution. He  was  entrusted  with  military  and 
civil  offices,  which  are  only  committed  to 
known  and  tried  hands.  He  is  past  the  early 
period  of  youth,  when  great  imprudence  may 
take^ptace,  notwithstanding  pnncinles  gene- 
rally correct.  He  has  a  young  ramily  de- 
pendent on  him  for  their  subsistence;  and 
earns  his  livelihood  by  a  trade  which  depends 
for  its  success  on  his  good  character  and 
conduct.  It  has  been  proved  that  his  general 
conduct  is  not  only  correct  but  exemplary,  and 
that  he  has  been  in  the  habit  of  communicating 
and  discussing  his  opinions  on  politics  with  a 
variety  of  persons  who  did  not  concur  in  thjose 
opinions ;  and  therefore,  while  the  other  panel, 
from  being  less  known  in  the  town,  could  not 
have  his  character  so  generally*  spoken  to,  we 
wbo  have  been  entniued  with  the  defence  of 


amtilthamai 


hr  SetBtmn. 


Buid,  and  >Ih>  betAg  1«m  dreamscrib^d  in 
^is  rasped,  eoold  affrad  toiMke  a  Mlection 
ioi  oar  witees9^  have  prnpoaely  abstained 
from  taking  ibe  eridence  of  these  who  con* 
.ciured  ih  his  poMtical  sentiments,  or  bringing 
one  Teformer  to  testify  in  larour  of  another, 
and  have  tboaght  it  better  to  take  the  evidence 
of  those  only  who  were  naturally  influenced 
hy  opposite  motives  and  principles. 

You  heard  from  them  that  mis  person  has 
always  been  remarkable  for  the  frankness  with 
wfaidb  he  ddivered  his  opinions;  and  that, 
even  when  expressing  them  with  the  beat  and 
exaggeration  inseparable  from  such  discussions 
among  parties  who  do  not  agree,  they  always 
appeared  to  them  perfectly  innocent  and  fair. 
wowne,  Wyllie,  and  Miller,  from  profession 
and  sitoadon  the  roost  figuring  men  in  the 
town,  and  the  most  notoriously  adverse  to  any- 
change  in  4he  established  order  of  things,  aU 
say  he  «miformly  maintained  such  language  as 
impressed  their  minds  with  a  conviction  Uiat 
he  was  strongly  and  decidedly  attached  to  the 
constitntion  of  this  empire,  though  he  wished 
for  a  reform  in  the  Commons  House  of  Pariia- 
aent :  that  he  was  a  mild  person,  aud  of  a 
cbancter  incapable  of  exciting,  in  any  way, 
any  degree  of  disorder  or  discontent  against 
government. 

f  am  aware,  that  a  good  moral  character  is 
not  in  general  an  answer  to  a  charge  of  crime, 
if  there  is  distinct  proof  of  its  having  been 
committed  on  any  particular  occasion ;  and 
that  an  allegation  by  the  prosecutor  of  a  wrong 
committed  by  a  person  whose  moral  character 
previously  stood  untainted,  will,  if  supported 
Dy  positive  evidence,  lead  to  the  punishment 
of  tnal  person,  notwithstanding  such  previous 
good  character.  But  I  submit  to  ^oa,  that  in 
a  trial  Uke  this,  depending  mainly  on  thie 
question,  whether  the  panel  harboured  a 
mdced,  ielonious,  and  seditious  purpose, — 
or,  if  he  did  not  harbour  such  purpose  in  its 
obvious  aod  naked  form,  whether  he  was 
chargeable  with  that  disregard  of  the  safety  of 
his  neighbour,  or  thalt  recklessness  as  to  con- 
sequences, which,  in  the  eye  of  law,  is  const* 
dered  a  moral  wrong,  and  punished  as  wicked 
and  felonious : — ^I  say,  in  a  case  in  which  every 
thing  depends  on  this ;  where  the  matter  is  in* 
tfinsically  of  a  doubtful  nature ;  where  it  is  a 
qoesticm  whether  a  person  has  gone  beyond  a 
IMidooaUe  vivacity  of  discussion,  and  ven- 
tuied  to  use  language  which  the  law  holdsto 
be  demonstrative  evidence  of  Improper  pur- 
.pose — if,  in  these  drcmnstances,  you.  find  a 
standing  iq  Snch  a  situation  as  the  panel 
teaiftMr«ttii*ea]^0»;himself  to  public 
gifted -with  powe^of  eloquence- 
no  way  accoslomed  or  inditted  to  try  his 
tsieals  in  that  way — carrying  on  a  thriving 
trade,  which  he  has  no  disposition  to  leave — 
and  standing  comparatively  uniojured,  while 
etbers  around  him  were  on  the  verge  of  ruin 
—<>f  peaceable  habits^— of  moderate'pohtical  ^ 
pfinciples — under  such  citcamstances,  I  say, 
foa  are  booad  to  pr^fmne  for  his  iimoceDce; 


A.  D.  1817* 


ro6 


unless  eitmiAat  intention  be  dfariy  and  un* 
answerably  established  against  him.  The  legal 
presumption  of  innocence,*  in  such  a  ease, 
amounts  almost  to  a  moral  certainty. 

In  this  situation,  Mr.  Bahrd,  placed  as  he 
was  hi  the  heart  of  a  manuihcturing  district, 
could  not  hA  to  be  a  spectator  of  rery  general* 
and  very  deplorable  misery.  A  shuer  in  it  he 
must  also  have  been  in  some  degree,  as  all 
persons  must  be  who*  are  connected  with  the 
sale  of  commodities  from  which  purchasers  are 
gradually  withdrawing.  Although  the  causes 
of  the  general  distress  did  nQ>t  so  immediately 
or  directly  affect  him,  yet  he  heard  and  wit* 
nessed  those  clamours  and  complaints,  which- 
certainly,  in  this  part  of  the  island,  have  not 
hitherto  broken  out  into  those  rather  compas- 
sionable  than  criminal  excesses,  to  which-  the 
infirmity  of  human  nature,  rather  than  the  ma- 
lignity of  individuals,  or  of  any  class  of  the 
people,  mav  be  hurried  in  seasons  of  such  un* 
precedented  calamity.  He  could  not  help 
hearing  those  complaints,  and  listening  to  the 
remedies  which  were  proposed  for  those  evils ; 
and  it  appears,  that  he  concurred  in  the  opi- 
nion which  some  persons  have  held  ^  and  he 
confessed  it  to  all  with  whom  he  had  occasion 
to  converse-*- that  a  great  part  of  the  evils  arose 
from  a  defect  in  one  of  the  great  bodies  of  the 
legislature — from  want  of  due  communion  of 
sentiment  between  the  bod^  of  the  people,  and 
those  whose  fonction  it  is  to  express  theilr 
sentiments,  and  watch  over  their  interests. 
That  he  entertained  such  an  opiniou,  there  is 
no  doubt.  Not  going  so  iar,  perhaps,  as  think* 
ing  that  a  ueform  in  the  representation  of  the 
people  would  remove  the  evils  then  existing, 
ne,  in  common  with  many  persons,  was  of 
opinion,  that  it  mivht  tend  at  least  to  prevent 
their  recurrence.  He  certainly  did  favour  the 
professed  object  of  the  meetinfr,  and  in  this, 
if  his  guilt  began,  it  also  ended.  He  undis- 
guisedly  gave  his  countenance  to  a  general 
meeting  for  petitioning  the  thr^e  branches  of 
the  legislature,  for  redress  of  grievances,  and 
reform  of  the  Commons  House  of  Parliament. 
His  conduct  in  this  particular  was  worthy  of 
the  sincerity  with  which  it  was  dictated*  As- 
sociated with  some' others  whom  you  have 
seen,  they  agreed  as  to  the  propriety  or  ex* 
pediency  of  encouraging  this  method  of  pro- 
ceeding; and  at  the  same  time,  they  .deter- 
mined not  to  take  this  step  of  calling  a  meeting 
for  petitioning  the  legislature,  if  it  was  op* 
posed,  or  likeV  to  produce  any  opposition,  m 
an  official  form,  on  the  part  of  the  local  ma^ 
gistrates.  Accordingly  mt,  Baird,  as  one  of 
Uie  most  respectable  of  the  committee  (all  of 
whom  seem  to  have  been  cool  persons  enough 
when  the  heat  of  the  action  was  over,  and  the 
field  deserted),  waited  on  the  provost;  and 
the  provost  told  you,  that  though  be  disap- 
proved of  the  meeting,  he  did  not  think  ne 
nad  power  to  prevent  it,  •  He  seems .  actually 
to  have  gone  out.of  town  when  it-  took  place : 
so  far  'was  he'  from*  thinking  thefe  ^was  any 
daDger  to  be  appfthndad :  and  he  wu  ' 


ni 


iff  QfiOROB.  III. 


JVM  ^Aktmder  tttatfrn 


CM 


ied  in  bit  opfailoD  from  tht  mall— <lifft  wm  | 
no  tendency  tx>  tumult  or  disonler.  | 

At  that  meetiogi  Mr.  Bmidy  no  doubt^  «t- 
ilended.  He  wu  ttiere  wid  heard  the  apexes 
ihat  Jirere  delivered ;  some  of  wbidi,  ondoabt- 
edlj,  ^icontain  Tery  indecorous  and  improper 
'Cqpfettibns — expressions  which  it  may  have 
been  prepoetctous  to  utter  at  a  meeting  con- 
vened for  lawfol  and  oonstitutional  purposes. 
But  if  persons  go  to  such  a  meeting  at  al^  they 
may  expect  that  prepoelerous  expressions  will 
1)0  used,  on  both  sides,  peibafMy  of  the  qnes- 
tion.  But  is  a  man  to  ne  punikied  for  sedi- 
tion, if  he  accidentally  hear  seditious  laoguage 
mnt^oyed  by  aoodier  person?  Not  on^  wet 
the  measure  of  ealliog  a  meeting  for  petitioning 
perfectW  lawful  in  itself,  but  &e  bamnour  of 
those  who  attended  seems  to  haTO  been  ordeily, 
decent  and  exemplary*  I  do  not  know  whether 
Tonr  views  concur  with  those  of  Mr.  Baird, 
but  thinking  as  he  did  on  the  subject,  he  acted 
properly.  It  is  to  be  taken  for  granted, 
that  Ae  petitioners  were  sincere  in  their  opi* 
■km,  and  that  in  taking  those  measures,  tney 
thought  thev  would  be  of  great  eflRsct  in  pro* 
ducing  good* 

At  that  meeting,  then,  Mr.  Baird  did  not 
epeak.  He  heard  the  speeches  in  question^ — 
Mt  as  that  could  not,  or  course,  taint  him  with 
guilt,  I  am  sure  you  will  go  along  wiUi  me  in 
thinking,  that  up  to  this  point  there  was  im- 
thing culpable  in  his  conduct;  and  therefore 
the  veiy  beginning  and  ending  of  the  crimi- 
nality imputed  to  him  consists  in  his  having 
nllefwaids  (I  cannot  say,  concurred,  but)  sub- 
mitted to  a  resolution  forced  on.himbythe 
m^rity  of  those  persons,  with  whom  he  was 
associated,  in  an  application  to  parlmment,  for 
having  these  orations  printed,  in  a  foil,  true 
and  particulat  acoaunt  of  the  whole  proceed- 
ings. This  we  stated  in  the  outset ;  and  it 
hat  been  proved,  without  contradiction,  by 
the  testimony  of  a  variety  of  witnesses.  In 
the  examination  of  the  several  witnesses,  no 
indtcation  ever  appeared,-«no  hint,  even  in 
the  moat  distant  manner,  ever  presented  it-' 
fel(— 4hat  the  publication  of  the  speeches  was 
made  inith  a  view  that  seditious  doctrines 
dmnld  be  piopatated,  or  that  the  contents  of 
the  work  should  be  studied  by  persons  at  a 
distance.  Hie  puUication  is  dearly  proved 
not  to  have  had  any  such  ambitious  object; 
but  to  have  been  made  in  the  humble  view  of 
lecaiing  a  little  paltry  gain,— to  defray  tim 
expense  of  nailing  up  a  fow  boards  for  the  ao- 
coasmodation  6f  the  oraton,  and  providing  a 
ftw  sheets  of  gilt  paper  for  thsee  or  four  peti- 
tions to  be  tnnsmitled  to  the  Prince  Regent 
mid  the  Houses  of  Pariiameat. 

It  occurred  to  the  petitioners,  that  the  only 
means  for  defraying  mis  heavy  expense  was  to 
print  an  aooonnt  of  their  piocoedings^— that 
anums  tiieir  neighbours,  whether  those  who 
agreed  mth  them»  or  weto  opposed  to  them 
in  iwlitkal  oninions,  tbcy  might  sell  as  many 
eopies  as  te^ht  raisie  the  sum  which 


is  not  the  leeit  veetige  of  aoydmbn  m  havn 
the  woik  read  or  admired,  either  for  mischief 
or  glory;  The  only  object  was  to  get  a  small 
number  sold;  and  aeoordrngly  diey  seem  all 
to  have  been  sold — without  so  mndi  as  a 
single  copy  having  been  given  awuv.    Mr. 


Baird,  into  whose  hands,  as  on^ 
mittee  of  the  petitioners^  a  number  of  the 
copies  were  impressed,  got  rid  of  them,  it  is 
true,  vqth  more  fodlity  than  another  man  who 
was  examined  to-day  did  of  Jiis  copies.  But 
this  was  merely  becnnse  he  keeps  a  weU-fro- 
quented  shop,  not  because  he  was  in  any  way 
aealoos  for  their  circulation.  The  natum  of 
Mr.  Baird's  trust  and  management  in  the 
burfnem  were  proved  to  vou  by  his  own  shop- 
man, and  his  own  dedamtion;  and  it  has 
been  proved,  that  if  he  got  rid  of  every  oim 
copy  he  vras  possessed  of,  shopmanlike  1m 
exacted  his  groat  for  every  one  ot  them  urhidt 
he  sold.  Tbe  printer  said  that  about  400 
copies  were  printed.  Some  remained  in  the 
haiids  of  members  of  the  committee  who  did 
not  get  them  sold.  They  were  not  sold  te 
booksdlen ;  becanse  the  petitionen  could  not 
eflbrd  to  pay  booksdlcrs'  commission:  thev 
were  sdd  for  a  paiticnlar  purpose,  which  £ 
have  specified,  and  were  soul  in  the  cheapest 
way.  Some  of  them  were  sold  in  a  grocer's 
sh<^  where  they  mixht  be  ofuse  to  wrap  up 
goods  that  were  purmsed;  other  members  of 
me  committee,  however,  could  not  sell  their 
eopies,  because  they  could  not,  perhaps,  be  of 
sudi  immediate  use  to  the  purchasers. 

You  see  the  nature  of  this  transaction,  then^ 
and  you  must  now  be  aware  that  it  is  con- 
formable U>  the  statement  which  was  given  of 
it  at  the  beginning.  Mr.  Baird  took  no  step 
disconformable  to  his  general  dmracter  of  n 
quiet,  modest,  honest,  wel)-disposed,  good 
man ;  he  made  no  speedies,  but  disapproved 
of  various  speeches  and  passages  in  speedma 
(which  foot  has  been  folly  made  out),  as  hamh 
and  offensive;  and  these  are  considerations 
which  certainly  are  of  importance  in  determtn* 
ing  whether  he  n  guilty  or  not  of  sedition,  an 
diarged  against  htm  in  this  indictment. 

These  are  the  whole  of  the  foctsof  this  case  ; 
and  you  will  be  pleased  to  add  to  these  focta 
what  is  proved  to  you  by  the  evidence,  and 
which  the  dates  and  the  documents  themselves 
instruct,  vix.  Uiatall  this  took  place  publidy. 
It  was  known  to  his  majestv's  advocate,  and 
all  the  lieges,  that  this  was  done  so  long  beck 
as  December  1816;  and  yon  have  seen  that 
400  eopies  of  the  publication  were  all  that 
wevepnnted.  I  do  not  think  yon  will  imagint 
it  is  very  Ifkdy  the  anthon  and  printem  es» 
peeled  a  gtfeat  sale.  None  of  the  authom  were 
mndi  known  inthe  literaiy  woiid,  and  none  of 
them,  I  think,  profossed  themeelves  to  be 
poUttdans.  The  object  was  to  sell  copies  to 
the  eniiotts  cdnntiy  gendemen  and  the  goasipa 
m  the  neighbourhood.  It  was  reasonable  to 
think,  too^  that  some  peofite  mig^  have  tlua 
eariQSity»  who  were  prevented  by  the  weather 
frMB  gm^^mtt  it,  bTtttmidiag  at  thn  meeting ; 


09l  mwf  THaiiifi  fiwrrfjTir  VMmw 

far  ywfi  i*i>  KwMMt,  thai  iIm  ipeedm  i*tM 


A.  D.  1817. 


IM 


•pocMi  IB  dtfiafioe  of  tiM  angxy  biwtf  of 
iMTODy — ifi  tiM  nidtt  of  hafl,  mow,  and  wind^ 
•ad  potwitiwtaiiding  tho  coporitioa  of  the 
•lomeBlt.  PodtwDS  ia  oenumiiity  with  tbese 
gpoechOT  <pero  cngi owod ;  tad  it  it  nol  demod, 
iior  can  there  be  wf  doebt  of  the  feet,  thai 
liwjr  were  oieaentedp  and  tliat  thej  were  re- 
ceived Willi  the  oaoal  cinlities  with  which 
pewons  in  thoee  hig^  qmirleia  are  woat'to 
leeetve  aoch  coimmmifeatioM, 

All  thie  was  dene  montht  ago,  and  ^  a  time 
when  DO  atarm  aboot  seditioa  obtained  here 
or  in  aaiy  oUier  quarter  of  the  kingdom;  and 
Mr.  Beird  was-attowed  lo  idl  his  commodity 
el  pamphletay  and  to  convene  with  his  neiph- 
boiua  aboQt  them^  without  an j  bod^  hmting 
Ihathewaiin  any  danger,  not  fitom'Whathe 
was  doiaff,  bat  from  wluift  he  had  done  weeks 
before.  Bot,  after  that,  some  odiootf  proceed- 
ings took  place  in  another  quarter  of  the 
ishiad.  Certain  mobs  had  eicited  consider- 
aMe  alarm  in  the  mind  of  the  Lq^islatiire,  and 
of  the  inhabitants  of  the  metropolis^  where  a 
larn  asMmbkq^e  of  people  is  easily  convened) 
and  distnrbance  easily  excited.  They  did 
comnit  some  little  ontrage,  and  occasioned 
aome  fear  for  the  peace  of  the  dty,*  This 
Hear  was  propasated  to  the  extremities  of  the 
empirey'-4nd  then  the  Ttgilance  of  the  Pnblic 
Fh»ecntor  in  tlds  country  goes  back  to  a  for- 
BKT  meeting,  in  a  remote  quarter,  which  had 
not  been  attended  with  any  tumult,  and  had 
not  been  followed  up  wifh  any  the  slightest 
criminal  consequences.  A  book,  consisting 
of  foolish,  ridicnkras  specimens  of  rustic  ora* 
torr  is  on  this  occasion  brought  forward,-— 
and  this  quiet,  esteemed  and  trust-worthy 
man  is  brought  to  your  bar,  and  arraigned  for 
having  wittedly  and  fdonioosly  circulated 


We  come  now  to  consider  what  is  the  in^ 
port  of  the  foets  in  this  case,  and  what  is  the 
▼erdict  you  ought  this  night  to  pronounce  on 
the  peison,  wImso  character  through  life,  and 
whose  conduct  upon  one  occasion,  have  been 
detailed  to  yon  in  evidence  to-day:  The 
ouestion  is^  Whether  the  eridence  to  which  I 
have  referred  is  such  as  to  compel  you,  con- 
trary to  that  general  presnmption  of  innocence 
ifl^di  law  establishes  for  every  aoeosed  per- 
aoB,*-coatnry  to  that  special  presumption  of 
Jljnnrnncfl  wluch  the  wbole  tenor  of  the  de- 
llmdaBt's  lifo  and  Aoaduet  morallT  esUblishes 
in  his  favoor,— wheihvr  that  evidenee,  I  say, 
be  each  as  to  constrain  yon  to  pronounce  theft 
kis  eaadact  upon  this  occafion  originated  in 
amligaaal  aad  diabolical  parposes^-— purposes, 
foom  the  snoosis  of  vrido  he  had  Orety  thing 
to  lose  and  nothing  to  gain,  but  was  to  be 
ttorsly  an  inglorioos  stirrer  up  of  sedition  in 
the  fim  instance,  and  a  victim  to  its  guilt  and 
iosaaify  in  the  second. — ^The  question  I  say  is. 
Whether  the  evidence  goes  to  shew  that  such 
Is  Ihe  chaiacter  of  his.  o£fence,— that  such  foUy 


"vw- 


flee  James  WatsonVCeM,  VoL  xzxii.p.  1« 


oMst  be  imputed  to  a  men  of  sense  and 
racter,  and  that  vou  cannot  help-  saying,  on 
your  oaths,  that  ne  disregardea  all  conse- 
quences to  others,  to  his  country,  and  to  him- 
self and  was  detehnined  to  stir  up  seditioa 
and  distaibance. 

The  essence  of  this,  and  of  all  other  Cffimee, 
consists  in  the  moral  defect  by  which  they  are 
engendered;  and  therefore  it  is,  that  eveiy 
criminal  indictmeot  necessarily  charges,  that 
the  offence  for  which  it  threatens  the  iccosed 
person  with  punishment  was  committed  wtclh 

acnd/emioiii/j^ ;  and  I  believe  almost  every 
ctment  for  crimes  of  this  description  con- 
tains in  more  express  words  than  occur  here, 
an  allegation  that  the  acts  set  foitii  and  de- 
scribed were  done  wdA  en  mlotfioa  to  excite 
sedition  and  disturbance.  It  is  the  intention,, 
in  short,  in  which  the  crime  legally  and 
morally  consists.  I  do  not  find  foult  with  the 
omission  of  that  in  the  indictment.  I  rely  oi» 
the  candour,  propriety,  and  vrisdom  of  the 
Bendi,  to  give  you  the  requisite  information 
on  the  subject :  and  I  am  sure  yo^  wiU  be  told 
that  the  words  indispensably  inserted  ^in  tliia 
indictment  are  in  their  own  statement  equiva- 
lent to  a  direct  allegation  of  intention  in  the 
commission  of  the  crime  charged;  aad  that  a 
more  particulsr  charge  of  intention  oould  nol 
have  served  any  purpose. 

When  I  sav  this  is  a  necessary  piH  of  this^ 
and  of  all  other  charges  of  sedition,  yon  win 
ffive  me  so  much  ciedit  as  to  suppoee  that  I 
do  not  mean  to  assert  that  the  Fuolic  Prose- 
cutor is  bound  to  bring  direct  and  positive 
proof  of  a  criminal  intention  having  bee» 
actually  expressed,  or  that  it  is  not  compe^ 
tent  for  him  to  aigne  that  the  nature  of  the- 
acts  themselves, — the  circumstances  in  whick 
thqr  were  committed, — the  situation  of  the- 
party, — ^the  temptations  to  which  he  was  ex- 
posed,^-ids  whole  conduct  before  and  after  tibe- 
time  he  con^mitted  the  acts, — the  general  and 
well-known  complexion  of  the  times  when  the* 
acts  were  done,  are  to  be  taken  into  consider* 
ation,  in  forming  a  judgment  as  to  the  inten* 
tion  with  which  the  acts  were  performed.-— ^ 
Sttdi  considerations  csnnotbntarord  evidence 
of  the  purpose  and  intention  \  and  in  ^ues* 
tions  with  regard  to  almost  dl  other  onmes^ 
^is  inference  is  generally  so  plain  and  neces*- 
sarjr  M  to  make  the  task  of  the  Jury  compa* 
rativdy  easy.  If  a  man  aim  a  blow  at  another; 
and  knock  out  his  brains, — if  a  person  break 
in  at  night  and  rob  a  house,  or  if  he  for^e  a 
bill,  and  draw  money  for  it  from  a  bank,  it  is 
vain  ta  say  there  is  a  necessity  to  bring  evi* 
dence  beyond  the  feet  itself,  to  prove  a  malign 
nant  purpose  in  the  one  case,  or  a  purpose  of 
fraud  in  the  other.  But  observe  me  charao* 
ter  of  sedition  as  defined,  or  attempted  to  be 
defined,  by  my  learned  iiiend,  and,  indeed,  bv 
all  the  lawyers.  I  am  not  finding  fault  with 
my  Lord  Advocate  for  not  properiy  defining 
sedition,  because  it  is  one  of  uie  disadvimtag^ 
attending  such  a  case,  that  a  suificient  ana 
satisfactoiy  definition  is  not  to  be  easily  found) 


751 


S7  GEORGB  IIL 


Trial  ^Mtumbr  M*lMm 


tTtt- 


meattest  of  the  peoples  ^mn  aooient  times. 
Since  the  Revohitioa  it  has  oever  beeo  qaesti- 
oned;  and  immedialely  before  that  glorious 
event,  it  was  attacked  only  to  enable  a  tyran- 
uoal  gOTenunent  to  sabvert  the  public  liberty. 
But  t£e  attack  was  repelled  even  in  the  worst 
of  times ;  and  the  first  act  of  die  go?emment 
of  King  William  and  Queen  Mary  was  to 
eonfirm  the  right  of  petitioning,  as  a  franduse 
of  which  the  people  could  not  be  deprived. 
It  has  ever  ^mce  been  considered  as  a  right 
unalterably  fixed  by  the  fundamental  laws  of 
the  state ;  and^  accordingly,  though  the  exer- 
cise of  it  is  suf^sed  to  be  sometimes  unplear 
aaat  to  the  government,  yet  no  administration, 
and  neither  House  of  Parliament,  has  hitherto 
thought  proper  even  to  disoourage  the  people 
in  the  exercise  of  their  right  of  petitioning. 
How  many  hundreds,  or  rather  thousands,  of 
petitions  have  been  presented  to  the  different 
branches  of  the  kgislatnie  within  these  few 
years,  representing  as  grievances  thinn  which 
are  not  acknowled^  to  be  such  1  and  yet  ihe 
petitions,  as  coming  from  the  people  in  the 
exercise  of  their  right,  have  been  graciously 
received  by  tliose  to  whom  they  were  address- 
ed. And  so  important  is  the  right  of  petition- 
ing, that  every  other  right  in  the  people  has 
been«  supposed  to  depend  upon  it,  inasmuch 
as  the  people,  if  deprived  of  that  right,  would 
be  in  aanger  of  losing  the  protecticm  necessary 
to  defend  them  in  their  other  rights. 

It  is  obvious  that  a  fair  communication  from 
the  people  of  their  grievances  and  discontents 
to  the  legislature,  which  has  the  power,  and 
whose  duty  it  is  to  protect  them,  cannot  be 
•edition,  if  they  have  a  right  to  make  such 
communication .  If  the  people  should  petition 
parliament  without  hanng  the  riffht  oy  law 
to  do  so^  these  petitions  might  be,  and  in 
almost  every  case  would  be  seditious  and 
dangerous,  in  raising  or  increasing  discontents 
and  disturbances ;  because  every  complaint  of 
a  public  grievance  has  a  tendency  to  create  a 
public  discontent,  and  this  is  illegal  and  se- 
ditious in  every  case  where  the  law  does  not 
allow  it.  For  the  same  reason,  any  violent 
complaint  of  public  grievances  may  be  sediti- 
ous or  illegal,  where  it  is  not  addressed  to 
persons  having  legal  authority  to  take  it  into 
consideration  and  give  relief.  But  it  would 
be  a  solecism  to  say,  that  a  petition  to  the 
King  or  to  either  House  of  Parliament,  stating 
grievances,  and  praying  for  redress  is  sediti- 
ous, because,  Ist,  it  is  allowed  by  law ;  2dly, 
the  persons  addressed  have  an  authority  to 
lake  the  complaint  into  consideration  and  give 
•relief.  Petitioning  is  indeed  considered  as  a 
means  of  removing  discontents  and  preventing 
disturbances,  not  as  a  means  of  raising  them  ; 
and  this  may  be  true  i^  some  cases,  though  it 
is  not  always  so,  and  we  have  frequently  seen 
a  forment  of  discontent  much  increased  by 
numerous  meetings  of  the  people,  called  for 
the  purpose  of  petitioning.  But  stiU  the  legal 
'right  of  petitioniog  is  unauestionable ;  and  it 
must  be.  supposed  that  this  right,  though  it 


cannot  be  used  without  expressing  discontent, 
and  thereby  communicating  it  among  the  peo». 
pie,  and  possibly  raising  it,  where  it  had  pre- 
viously no  existence,  may  be  legally  (and 
without  any  crime,  or  the  fear  of  criminal  pro- 
secutions^  used  in  every  case  whatever,  evea 
though  tne  use  of  it  diould  in  some  respects 
have  a  bad  tendency ;  the  utility,  and  even  n^ 
cessity  of  presentins  the  right,  counterbalance 
ing  the  nuschiefr  which  may  be  occasioned  by 
the  seditious  or  discontented  spirit  which  may 
he  raised  by  it. 

But  it  must  be  plain,  that  if  the  people  have 
a  right  to  state  the  grievances  in  petitions  Cor 
redress  of  grievances  to  the  different  branches 
of  the  legislature,  it  follows  as  a  necessary 
consequence  that  they  have  a  right  to  state 
these  ^evances  in  the  plainest  language,  and 
even  m  what  is  commonly  considered  to  be 
strong  or  coarse  language  in  the  descriptioa 
of  public  abuses,  if  they  do  not  in  their  peti- 
tions violate  that  respect  that  is  due  to  the 
legislature:  under  that  restriction,  they  may 
assert  in  their  petitions  that  there  are    the 
grossest  abuses,  even  in  the  legislature  itself. 
And  you  need  not  be  told,  that  even  petitions 
of  that  kind  are  occasionally  sent  from  all 
quarters  of  the  country,  when  discontents  pre-> 
vail  among  the  people.    A  stranger  to   the 
peculiarities  of  tne  British  Government  might 
think  it  odd  that  petitions  of  this  class,  con- 
taining  inferences  of  a  nature  apparently  so 
irreverent,    not   only  indicating  an  extreme 
degree  of  discontent  in  the  petitioners,  but  ■ 
directly  tending  to  raise  and  aisseminate  the 
same  kind  of  discontent  through  the  whole  of 
the  kingdom,  should  be  tolerated,  especially 
where  it  b  plainly  the  opinion,  not  only  of  the 
different  branches  of  the  legislature,  but  also 
the  opinion  of  the  more  sensible  part  of  the 
community,  that  the  petitions  are  very   ill- 
founded  in  their  representations  of  grieyances, 
and  demand,  by  way  of  redress,  new  public 
measures  or  arrangements,  which  would  not 
only  be  useless,  but  dangerous  and  even  cala- 
mitous.   Such  considerations,  however,  have 
no  influence,  or  very  little  influenoe,  in  the 
question,  whether  the  people  have  the  right  to 
present  their  petitions,  and  whether,  when 
offered,  the  petitions  ought  to  be  received. 
On  the  contrary,  it  has  long  been  held  by  the 
legislature,  that,  as  the  people  have  the  right 
to  petition  for  redress  of  grievances,  so  they 
have  the  right  to  state  what  they  consider  to 
be  their  grievances,  whether  they  are  really 
ffrievances  that  ought  to  be  redressed  or  not. 
The  general  rule  is,  that  however  unreasonable, 
or  unfit  to  be  granted  the  prayers  of  the  peo- 
ple in  their  petitions  may  be,  it  is  not  unfit  to 
receive  the  petitions,  and  the  people  have  a 
right  to  present  them,  a  right  that  is  unalie- 
nable. 

But  fiirther,  if  the  right  of  petitioning  be- 
longs to  the  people,  the^  must  of  necessity 
have  the  right  of  deliberatioa  upon  the  subject 
of  their  petitions,  to  consult  with  each  other 
at  public  meetings,,  to  be  adjrised  by  thofe 


m 


and  Tkonuu  Bairdjor  BedUion, 


A.  D.  1817. 


C78 


who  are  able  to  advise  them,  or  think  them- 
sehres  able,  upon  the  Tarious  points  which  may 
occur  in  coosuleiing  what  are  griemncef ,  and 
what  are  doc  ;  end  if  there  are  grieyances^  what 
are  the  remedi^  that  oaght  to  be  proposed  or 
prayed  for  in  their  petitions.    With  regard  to 
the  important  claims  which  may  be  made  in 
petitions  to  the  legislatnret.  every  man  neces- 
sarily most  have  a  right  to  meet  with  his 
/eiiows,  either  in  small  or  in  great  numbers, 
and  to  discuss  the  matter  with  them.    One 
man  may  think  that  annual  parliaments  lare 
Aeccssaiy ;  another  that  they  would  be  hurt- 
fbi  or  impracticable.    On  this  trial,  it  is  not 
necessary  for  us  to  consider  whe^er  annual 
psoiisuttents  and  universal  suffirage  are  eood  or 
CMkd  ;  and,  on  this  occasion,  I  have  nothing  to 
do  with  these  questions.    But  I  say  that  it  is 
DOt  nnlafrful  to  petition  for  either.    And  ge* 
neraOy,  vHiatever  the  grievance,  or  fancied 
grievance  is,  it  may  lawfully  be  the  subject  of 
a  petition  to  the  legislature  ;  and  for  tlue  same 
-season  it  may  lawfully  be  the  subject  of  deli- 
becalioB  and  discussion,  even  in  public  meet- 
ings  held  for  the    purpose  of  petitioning. 
You  will  observe,  that  there  can  be  no  limits 
to  this  right  of  petitioning,  and  previously  de- 
bbeniting;  lor  when  it  is  limited  the  right  is 
gone.    The  right  is  to  present  unreasonable 
as  well  as  reasonable  petitions.    Or   if  un- 
resoonable  petitioningwere  unlawful,  the  legis- 
lature alone  is  the  judge  of  what  is  reasoniu>le 
or  unreasonable  in  ^titions.    If  the  right  of 
petitioning  could  be  restrained  by  the  courts 
of  law,  there  would  be  an  end  of  the  right  of 
petitioning, — a  fundamental  law  of  tliis  mo- 
■aicfay, — a  law,  the  palladium  of  our  other 


On  lihe  occasion  of  which  we  have  heard  so . 
Bwdi,  when  the  people  in  and  about  Kilmar- 
nock met  to  consider  whether  thev  should  send 
addresses  to  the  legislature  on  the  subject  of 
their  grievances,  various  speeches  were  made, 
and  we  are  told  by  the  prosecutor,  that  these 
speeches,  and  in  particular  the  speech  of 
Mliereo,  were  seditious.  In  reganl  to  the 
^piestion,  whether  or  not  his  speech  was  sedi- 
tMNM,  he  pleads  that  the  right  6i  petitioning 
neeeasarily  implies  the  right  of  previous  dis- 
cswsion.  If  this  be  true,  apply  it  to  the*  case 
before  you.  At  such  a  meeting  a  speech  may 
possibly  be  seditious,  where  it  appears  either 
that  the  meetins  was  called,  not  for  its  pro- 
fessed object  of  petitioning  Parliament,  but 
nerely  to  afford  opportunities  to  make  sediti- 
ons speeches; — or  that  thoug^-  the  meeting 
hm^fidt  assembled  for  petitioning,  the  speech 
went  beyond  its  proper  bounds,  and  was  se- 
ditious in  statements  not  justified  by  the  oc- 
casion. As  to  the  first  of  these  cases,  there  is 
not  even  a  pretence  for  denying  that  the  meet- 
ing in  qoestion  was  hcrna  fiie  called  for  the 
rirpose  of  framing  petitions  to  Parliament, 
refer  to  all  the  evidence  which  vou  have 
heard.  It  was  a  meeting  collected  for  that 
purpose,  and  for  no  other,  nor  was  any  further 
purpose  in  view. 


The  argmnent  of  the  public  prosecutor,  aoid 
the  evidence  adduced,  will  apply  only  to  the 
second  case  supposed,  that  the  speakers  at  a 
meeting  hcma  jidt  assembled  for  petitioning, 
had  gone  beyond  their  bounds,  and  deviated 
into  sedition.  But  has  this  been  made  out 
against  Mr.  McLaren  T  His  short  speech,  though 
coarse,  was  suitable  to  the  occasion,  as  an  ex- 
hortation to  petitioning,  and  nothing  else. 

We  were  told,  indeed,  diat  this  case  is  simi- 
lar to  that  of  Pyshe  Palmer,  who  many  years 
ago,  was  tried  ror  sedition,  found  guilty,  and 
sentenced  to  transportation.     But  Ihis  is  a 
total  mistake.    The  case  before  you  is  very 
different  from  that  of  F^sbe  Palmer,  and  firom 
all  the  other  cases  which  have  hitherto  been 
tried  before  the  Court  of  Justiciary.    It  has 
been  reserved  4br  the  present  Lord  Advocate 
to  bring  3uch  a  case  as  the  present  to  trial,  in 
which,  if  the  verdict  find  the  panels  guilty  of 
sedition,  the  right  of  petitioning,  hitherto  un- 
challenged, seems  to  be  attacked  almost  in  di- 
rect terms.    The  case  of  Fyshe  Palmer  was 
that  of  a  seditious   libel,    an    inflammatory 
hand-bill,  containing  seditious  language,  witb-> 
out  any  proposal  to  petition  Parliament.    We 
were  told  that  this   case  of  Fyshe   Palmer 
was  defended  on  the  same  grounds  that  were 
stated  in  defence  at  the  beginning  of  this  trial ; 
yet  the  lord  advocate  declined  to  meet  that 
defence  particularly,  and  bear  it  down  ^  the 
triumphant  authority  of  Palmer's  case     There 
was  no  resemblance  between  that  case  and 
the  present.    Fyshe  Palmer  recommended  an 
appeal,  on  the  subject  of  grievances,  not  to  the 
legislature,  but  to  a  mob,  the  scum  of  the  earth 
in  the  neighbourhood  of  Dundee,-— to  the  so* 
verign  authority  of  the  multitude.   -The  de» 
fence  in  that  case  was  disregarded, — ^but  what 
was  it  ?  It  was  said,  that  in  this  free  govern- 
ment it  is  necessary  that  the  press  should  be 
free.    It  was  said  that  the  people  must  hate 
freedom  to  attack  public  men,  and  must  be  en- 
titled to  publish,  not  treason,  not  sedition,  in 
a  palpable  form,  but  their  thoughts  in  a  free 
and  independent  manner.    It  was  added,  thai 
Mr.  Fyshe  Palmer  was.  not  very  sound  in  his 
mind.     These  were  the   defences  for  him. 
You  wiUperhaps  be  surprised  when  I  tell  you, 
that  mv  Lord  Abercromby,  who  tried  the  case, 
held,  in  his  speech  to  the  Jury,  that  if  a  peti- 
tion to  Parliament  had  been  in  view,  the  libel 
of  which  Fyshe  Palmer  was  found  guil^  would 
not  have  been  of  so  aggravated  a  description, 
—would  jaerhaps  not  have  been  considered  a 
libel  atalL    ^flluch  flie  remarked)  has  been 
said  of  the  purity  of  tne  i 


intentions  of  the 
cietv ;  it  is  'said  they  had  nothing  in  view  but 
moderate  reform,  fiut,  Gentlemen,  you  .will 
consider  how  far  that  is  consistent,  either  witii 
the  tenor  of  the  address  itself,  or  with  what  is 
sworn  to  by  Mealmaker,  who  drew  the  first 
draught  of  it,  and  who  swears  exprsssl^^y  that 
at  that  time  he  had  no  second  petition  in 
his  contemplation'' and  that  what  was  after- 
wards to  be  done  would  have  depended 
upon  drcumstanees.    I  much  fear  that  here 


791 


57  GEOaCB  HI. 


Tritd  qfAkfonier  M'Laim 


[se 


HCMliMker  it  kO&ug  tht  fanitliy  aad  tktt  if 
tb^  bad  not  been  attended  to»  tbe  conduct 
of  thit  societjr  wonld  not  bnve  proved  so  pure 
ai  their  iatentioDs  are  said  to  Ikare  been/'  *  lo 
l^t  caiey  xou  will  otenwy  that  a  seditioiis  li- 
bel wna  diaperfeed  over  Uie  coontrr  witbout 
aAjt  consequence  being  cOnteaiplafted  bnt  that 
of  inflamMig  the  nindt  of  die  Multitude.  On 
the  other  hand,  we  have  been  at  pains  to  shew, 
that  the  pa«e]a  in  this  eaae  were  quiet  oiderly 
peraoofy  not  eoncemed  with  any  aeditioua  so^ 
gieliea ;  not  connected  with  any  poUttcal  parties^ 
only  fading  dlstresi^  thinking  they  had  gfier* 
aaces  to  ooaaplain  of,  aad  that  they  conra  betp 
ter  their  sitnations  by  petitioning  parliament. 
The^  BMt  together  in  the  aMat  ovdnrly  man- 
neiv-^delibemted  as  it  is  naual  to  do  in  public 
taaetings^—prepared  rasokidoniiy— 'prepared  a 
petition,— 4M  signed  it, — aad  that  ^tition, 
llongh  condied  in  strong  tecmsy  was  presented 
to  the  Honaes  of  Patiianient,  oonsideredy  re* 
eeivedy  and  laid  on  their  tables.  Is  the  right 
^petitieniagythen,  to  be  interrupted  in  thta 
eatraordina  mnanner^  by  bringing  the  pet»* 
tinners  into  the  Conrt  of  Justiciary^ 

RecoUet  that  this  was  a  neeting  ibr  consideiw 
ing  the  propriety  of  petitioning  the  legislatare^ 
and  that  the  aMeting  wonM  have  been  aHo^* 
gather  nugateiy  unleas  the  persons  then  met 
had  been  allowed  to  state  their  opiaions  t«  one 
another    In  the  first  page  of  this  indictaMnt, 
the  panel  is  ohttigad  with  hairing  wickedly  and 
letooionsly  delivered '<  a  speech  eootaimog  a 
number  of  seditiens  and  inflanmatory  remarks 
WHi  assertions^  eaknlated  to  degrade  and  bring 
im»  Goatanpt  the  Oovemment  and  legislatnre^ 
and  to  withdrew  therefrom  die  oonlklence  and 
aihctiotts  of  the  people,  and  to  fiU  the  raidm 
wilh  treuble  and  diesesitien."     Gentleaaen, 
wherever  (he  peopk  are  exposed  to  griavanees 
they  necessarily  must,  when  they  meet  to  eeik- 
aider  the  means  of  redrem,  espiem  their  sense 
of  these  grietances ;  and  I  ask  wliether  it  be 
possible  to  stato  pnUic  grievances,  especieUy 
grievances  arising  from  sndk  a  sonroe  as  over* 
taxation^  without  in  soaae  way  or  other  reflect- 
ing on  the  Government.    In  the  esereise  of 
onr  right  of  petilioning  against  grievances^ 
these  grievances  mnst  be  aikentioned  (  and  k 
isiBH>omihie  to  mention  tfaem^    or  even  to 
allude  to  them,  witbont  briaginff  the  Ooven^ 
SMUt  into  discredit.    For  ttamirte,  let  a  peti^ 
lien  he  presented  against  ovcr«taiatien»  irhafe- 
ever  were  the  causes  of  the  evtt^-^^wan  jnst 
ern^jusV— voavoidafale  miefortonea^  or  mis- 
eanduetin  pnMic afiairs^-^  is  hiwinl  to  stato 
the  grievwiee.    Bnt  can  it  be  elated  withont 
afffdiag  more  or  leas,  or  attempting  to  afleet 
An  pnMtc  opinaen  as  ta  the  merits  or  demerits 
«f  adminiBtmlseii?    Eveiy   pnbKe  statement 
respetling  puUie  eAus  has  that  tendency. 
Bat  are  the  people  to  be  intemptod  en  sneh 

r rends,  in  the  ezedtcise  of  their  just  rights. 
i:*  of  the  essence  of  their  ri^t  to  complain 
^^■^  •         ■  '        ■  I    I  I      I   II — 

*  Fyshn  Pahner'8  case  %  How.    Mod.  St« 
Tr.  371. 


of  grievgncas,  and  therefore  I  apprehend  yon 
must  disregard  entirely  those  general  expres- 
sions in  the  indiclmentt  charging  M'Laren'a 
speech  as  tending  to  bring  the  Government 
into  contempt.  The  petitioners  felt  griev- 
ances ; — tbey  prepared  petitions,  and  it  is  im- 
possible to  state  a  public  grievance  without 
throwing  blame  upon  the  Government.  I  do 
not  mean  to  examine  the  question,  whether 
there  really  was  any  blame  attachable  ta 
Government ;  for  it  is  the  same  thing  in  thin 
case  whetherthe petitioners  were  right  or  wrong 
in  their  statement.  My  defence  is,  that  they 
were  in  the  fair  prosecution  of  legal  view8« 
Suppose  no  words  to  have  been  uttered  bnl 
what  would,  in  other  circumstances,  have  beesi 
considered  seditious,  their  having  had  a  right 
object  in  view  is  a  good  defence.  But  ^^^ 
sort  of  obloquy  has  been  thrown  on  the  petiti^ 
oners,  without  any  notice  of  the  lawful  object 
thev  bad  in  view,  as  if  their  oliject  were  to  bw 
laia  entirely  out  of  consideration. 

The  legality  of  the  object,  and  the  sitnatioia 
in  which  the  speeches  were  uttered,  are  the 
most  important  eireumstances  of  the  case. 
Every  thuig  else  is  of  a  trivial  and  snbordinatn 
nature.  But  let  us  see  what  the  panel  is 
alleged  to  have  sai4«  No  positive  evidenon 
has  been  adduced  to  prove  any  part  of  bin 
speech,  eacept  a  few  words  at  the  end  of  tbe 
passage  quoted  in  the  indictment,  and,  so  fiir 
as  I  have  observed,  you  have  only  the  unoer* 
tain  evidence  of  one  person  to  there  worda« 
I  shidl  remark  upon  the  words  in  the  indict* 
ment. 

"  That  our  sufferings  are  insupDorteble,  in 
demonstreted  to  the  world."  I  ao  not  sajr 
whether  their  sufferings  were  insupportable  or 
not ;  but  they  appear  to  have  been  sevefre^  and 
the  people  were  met  ibr  the  purpose  of  con* 
sidering  them,  and  to  join  in  petitioning  fiat 
relief.    Here  I  presume  is  no  sedition. 

'*  And  that  they  are  neither  temporary,  wsr 
eccasihned  by  transition  ftom  war  to  peace,  ia 
palpable  to  all,  though  all  have  not  the  courage 
to  avow  it."  I  do  not  say  that  preposition  in 
palnable  to  every  body.  Some  are  dispeeed 
to  toiidi  that  the  calamity  has  been  occasioned 
in  eonseqnence  of  the  sudden  transition  fiwan 
war  to  peace,  and  some  dispute  that  propo* 
sition.  Some  are  of  opinion,  that  if  we  had 
continued  the  war,  at  an  expense  of  a  hundred 
miliions  a  year,  we  should  have  inlalUbly  se* 
cured  the  national  prosperity  and  greatnesa* 
I  shall  not  attempt  to  settle  these  points,  nor 
is  that  neeemary  to  die  present  aignment,  and 
I  beg  lea^Fe  to  protest  against  the  idea  that  1 

S've  any  opinion  ufM>n  them  at  all.  Perimpe 
[r.  M'Lnren  may  include  me  in  his  oenstue 
iir  my  wnnt  of  coorege  in  not  avowing  m$ 
opinion. 

^  The  fact  is  we  are  ruled  by  men  only  ee* 
lioitotts  for  their  own  aggrandisement;  and 
they  care  no  further  for  the  great  body  of  the 
people,,  than  they  are  subservient  to  their  own 
accursed  purposes.  If  you  are  convinced  of 
this,  my  countrymen,  I  would  therefore  puf 


SI] 


and  Thomas  Bairdjbr  Sediiian. 


A.  D.  1817. 


[83 


tile  qifestioiiy  «re  joii  degeaerate  eaoogh  to 
bear  it  ?    Shall  vfe,  whose  forefathers  set  limits 
to  the  all  grasping  power  of  Rome ;  shall  we^ 
whose  fbre&lliiers,  at  the  neTer-to-be-forgotten 
field  of  Bavnockbiun,  told  the  mighty  EdWard, 
at  the  bead  of  the  most  mighty  anny  ever  trod 
eo  Britain's  soiU  ''  Hitherto  shalt  thou  come» 
and  Qo  further  f  ahaH  we,  I  say,  whose  fore- 
lathers  defied  the  efforts  of  foreign  tyranny  to 
enslare  our  beloved  country,  meaiiiy  permit,  in 
our  day,  without  a  murmur,  a  base  Oligarchy 
to  feed  their  filthy  vermin  on  our  vitals^  and 
rale  as  as  tli^y  will?    No,  my  countrymen/' 
A  commentary  was  made   on  this  passage 
though  it  is  not  proved  that  the  panel  ever 
spoke  it.    The  prosecutor  takes  it  for  granted, 
without  evidence,  that  the  words  were  spoken. 
I  am,  therefore,  not  under  the  necessity  of  de- 
fending these  words.    But  are  they  in  reality 
so  culpable  ?    Are  they  seditious  ?    They  are 
mere  words  of  course,  in  expressing  those  pub- 
lic grievances   to  which  they  refer.      Every 
^ild  knows  that  they  are  the  common  and 
hackneyed  terms  used  by  petitioners  for  public 
reform^  and  ^excepting  one  or  two  allusions^  in 
which  there  is  evidently  no  sedition)^  if  they 
are  not  tame  and  feeble,  they  are  at  least  neither 
seditious  nor  in6ammalory.    Every  word  ap- 
plies to  the  professed  object  of  the  meeting  in 
petitioning,  and  to  no  other  object.    The  pro- 
secutor applies  some  of  the  words  to  the  king, 
hut  this  is  a  misconstruction  quite  unworthy  of 
my  lord  advocate.    Ministers,  and  the  pos- 
sessors of  borough  interest,  are  the  vile  Oli- 
garchy, who  are  said  to  feed  their  filthy  vermin 
on  our  vitals,  and  rule  us  as  they  will,  and  this 
attack  was  iustifiable  in  the  way  it  was  made. 
What  would  avail  the  right  of  petitioning,  if 
there  vras  no  right  to  petition  against  his  majesty's 
ministers  and  their  partisans  ?    Ministers  may 
be  impeached  in  parliament  for  their  public  con- 
doct,  and  they  may  be  complained  of  by  the 
people  in  their  petitions.    Are  petitions  to  par- 
lament  against  ministers  to  be  punisbea  ^ 
sedition  ?    What  have  we  here  ?    The  opinion 
of  the  panel  that  the  ministers  have  not  acted 
in  an  honest  way,  or  aa  ministers  ought  to  do. 
The  opinion  b  expressed  a  little  strongly,  but 
it  does  not  go  beyond  legal  bounds.    The  pe- 
tition was  afterwards  laid  before  parliament, 
aad  was  received  with  respect.    Now  the  ques- 
tion before  you  is  not,  whether  the  ministers 
are  culpable  or  not — ^not  whether  lord  Castle- 
leagh  or  Mr.  Vansittart  might  bring  an  actioo 
for  a  libel  or  defamation— but  whether  there  is 
any   sedition   in  this   speech.     I   ask    you, 
whiether  there  is  any  sedition  is  complaining 
of  these  ministers?    Sedition  is  an  attack  on 
the  sovereign  of  the  state— an  attack  on  the 
government^  not  on  the  ministers  of  the  go- 
▼amnent.    You  may  attack  the  latter  in  any 
w^^  withont  bang  guilty  of  sedition. 

fiat  farther,  as  to  thjB  passage  about  the 
OCgatdiy.  It  is  generally  understood  that  a 
few  persons,  ootexoeeding  300,  are  possessed 
of  an  influence  in  the  House  of  Commons  that 
is  very  pernicious  U>  the  state.    Thia  is  the 

VOL.  XXXUL 


Oligarchy,  the  government  of  a  few  by  nneon- 
stitutional  influence,  alluded  to  in  the  panel'^ 


against  tlfteKingl  against  the  Lords  ?  against 
the  Commons  ?  agaiast  any  branch  of  the  legis- 
laturcr  or  against  the  legislature  taken  as  a 
whole?  Jt  is  sedition  against  no  person  or 
legal  authority  whatever.  It  is,  indeed, 
directed  against  the  Oligarchy  itself,  which, 
in  the  opinion  of  the  petitioners,  is  the 
worst  enemy  of  the  King,  Lords  and 
Commons.  The  King,  Lords  and  Commops 
ought  to  be  independent ;  and,  if  an  uncon- 
stitutional influenoe  rules  over  them.  Is  it  se- 
dition to  complain  of  that  influence  ?  Every 
friend  to  the  constitution  will  complain  of  it, 
if  he  supposes  it  to  exist.  I  apprehend  there 
is  nothing  in  this  part  pf  the  charge ;  and  while 
M'Laren  denies  having  used  these  expressions 
about  our  rulers,  I  say  there  is  no  sedition  in 
them.  I  would  say  so,  even  if  the  words  had 
been  used  where  no  petition  to  the  legislature 
was  in  contemplation^  But,  coiasideripg  that 
the  meeting  was  called  for  that  purpose, 
nothing  can  be  more  unquestionable  thaa  that 
such  language  was  not  seditious. 

I  come  now  to  the  last  of  the  words  quoted 
in  the  indictment,  and  I  hope  to  satisfy  you 
that  there  is  nothing  seditious  to  be  found  in 
them.     Allow  me  here   to   remind   you   of 
McLaren's  situation  when  he  made  (his  speech. 
It  has  been  proved  that  the  task  of  opening  the 
meeting  was  imposed  on  him,  contrary  to  his 
inclination,  and  came  upon  him  rather  unex- 
pectedly.   It  was  indeeo  proposed  to  him  eight 
days  before  Uie  meeting,  but  he  was  unwilling 
to  undertake  it,  and  immediately  before  the 
meeting  be  pressed  Mr.  Samson  to  take  the 
business  off  his  hands.    An  hour  before  the 
meeting  Mr.  McLaren  was  again  urged  to  open 
the  business;  and  being   in  soma  measure 
compelled  to  it,  he  retired  for  a  very  short  time, 
and  made  some  notes  of  his  short  address  to 
the  meeting.    You  will  see  in  the  whole  pro- 
ceeding \hfi  most  evident  marks  of  haste.    It 
is  not  proved  that  the  last  sentence  was  written 
in  his  notes.     On  the  contrary,  it  was  not 
written.    He  was  placed  on  what  is  called  the 
hustings,  and  delivered  his  speech  during  a 
storm  of  Mrind,  rain  and  hail  $  from  the  noise 
of  which,  and  particularly  from  the  rattling  of 
the  hail  on  umorellas,  it  was  almost  impossible 
to  hear  what  he  said.    Besides  the  words  con* 
taioed  in  his  notes,  part  of  which  he  spoke,  and 
part  of  which  he  omitted,  he  spoke  other  words 
which. were  not  in  his  notes.     What  these 
words  were  is  uncertain,«as  they  could  not  be 
perfectly  heard.    A  single  witness  told  you  he 
heard  and  recollected  them,  though  he  could 
not  recollect  any  other  words  of  the  paners 
speech.     There  is  no  great  reasoa  to  rely 
on  the  recollection  of  tiae  witness,  though 
there  is  much  reason  to  presume  that  the 
words  had  not  the  meaning  given  to  them 
by   the  public   prosecutor.     The   words   in 
G 


791 


57  G£OaGB  HI. 


Trial  qfAkfonier  M'Laim 


{S0 


]|C««liMker  it  tilling  tht  Irath,  aad  thtt  if 
Ui«gr  had  not  been  attended  to»  the  conduct 
of  Ihit  societjr  wotdd  not  hvr^  proved  so  pure 
•s  their  uileatioiis  are  stid  to  iJAre  been/'  *  lo 
tlMut  etMy  y^  will  obs^nwy  that  a  seditioiis  li- 
bel wna  diipeised  over  Uie  countrr  without 
tn^  consequence  being  cOntmplalea  but  that 
of  inflaming  the  ninds  of  the  multitude.  On 
the  other  handy  we  have  been  it  pains  to  shew, 
that  the  panela  in  thii  eaae  were  quiet  eiderly 
pereonfi  not  concerned  with  any  scditiouB  so^ 
gielies;  not  conneeted  with  any  political  parties, 
only  feeling  distresi^  thinking  they  bad  grier* 
aaces  to  complain  of,  aad  that  tbi^  coukf  betp 
tsr  their  sitnatiotis  by  petitioning  parlianient. 
The^  met  together  in  the  moot  orderly  man« 
neiv-rdelibemted  as  it  is  usual  to  do  in  public 
mneUngs^ — prepared  resolutions,"*  prepared  a 
petitioB,-<--«nd  signed  it, — and  that  ^tition, 
though  couched  in  strong  tecmsy  was  presented 
to  the  Houses  of  Paiiianient,  considered,  re* 
eeived,  and  laid  on  their  Ubies.  Is  the  right 
^petitioning,  then,  to  be  interrupted  in  this 
eatraordina  rvmanner,  by  bringing  the  pet»* 
tinners  into  the  Court  of  Justiciary  I 

RecoUet  that  this  was  a  meeting  ibr  consider* 
iag  the  propiiety  of  petitioning  the  legislature^ 
and  that  the  aMeting  would  have  been  alto« 
gtther  nugatoiy  unlees  the  persons  then  met 
bad  been  allowed  to  state  their  opiaions  t^  one 
anotheiw  In  the  first  page  of  this  indictment, 
the  panel  is  charged  with  baTihg  wickedljr  aad 
leiooiously  delivered '<  a  speech  eootaimng  a 
number  of  seditious  and  inflammatory  remarlm 
WHi  assertions^  eakulated  to  degrade  and  bring 
iiilo  contempt  the  Government  and  legislature, 
and  to  withdraw  thetelrom  die  oonfidence  and 
aibctioas  of  the  people,  andiofiU  the  raidm 
witb  trouble  and  diasention.^'  Gentlemen, 
wherever  tbe  peopk  are  ezpoeed  to  i^evaneos 
they  necewsrUy  moat,  when  they  meet  to  eoik- 
sider  the  aieans  of  redrem,  ezprem  their  sense 
of  theae  giietances ;  and  I  ask  whether  it  be 
possible  to  stato  pubiie  grievances,  especieliy 
grievances  arising  from  sudk  a  source  as  over* 
taxation^  without  in  soase  way  or  other  reflect- 
ing on  the  Government.  In  the  exercise  of 
our  right  of  petilionilig  agsinst  grievancto^ 
these  grievances  must  l^  atentioned ;  and  it 
isimpomibie  to  mention  thei%  nr  even  to 
allude  to  them,  wilbout  briuginff  the  Govern* 
iMtit  into  discredit.  For  ttaaaiMe,  let  a  peti« 
tion  be  presented  against  over*taiatien>  iHmfe- 
ever  were  the  causes  of  the  evtt,^warB  just 
erai[^ustr-ttDa.veidafale  miefortooeo»  or  mis- 
•anduetin  public  afiair^-^  is  lawful  to  stato 
the  grietunee.  But  can  it  be  atated  without 
affKtingnwireorleM,  or  atannpting  to  aflect 
tbe  puUic  opinion  as  ta  the  ments  or  demerits 
«f  adminiBtmtaeo?  Every  pubiie  statemeni 
aaspeeiina  pubiie  aAira  has  that  tendency. 
Bat  are  the  people  to  be  interrupted  en  siMh 

rmnds,  in  the  eieicise  of  their  just  rights . 
is  of  the  esence  of  their  right  to  cooapiain 

*  Fysba  Pahner'a  case  %  How.    Mod.  St« 
Tr,  371. 


of  grievgucas,  and  therefore  I  appr«^nd  yo« 
must  disregard  entirely  those  general  expre** 
sions  in  the  indictment,  charging  McLaren's 
speech  as  tending  to  bring  the  Government 
into  contempt.  The  petitioners  felt  griev*' 
ances ; — they  prepared  petitions,  and  it  is  im- 
possible to  state  a  puolic  grievance  without 
throwing  blame  upon  the  Government.  I  do 
not  mean  to  examine  the  question,  whether 
there  really  was  any  blame  attachable  to 
Government ;  for  it  is  the  same  thing  in  Ihia 
case  whetherthe petitioners  were  right  or  wrong 
in  their  statement.  My  defence  is,  that  they 
were  in  the  fair  prosecution  of  legal  views* 
Suppose  no  words  to  have  been  uttered  but 
what  would,  in  other  circumstances,  have  bean 
considered  seditioust  their  having  had  a  right 
object  in  view  is  a  good  defence.  But  every 
sort  of  obloquy  has  been  thrown  on  the  petiti- 
oners, without  any  notice  of  the  lawful  object 
they  had  in  view,  as  if  their  oliject  were  to  bn 
laid  entirely  out  of  consideration. 

The  legality  of  the  object,  and  the  situatiott 
in  which  the  speeches  were  uttered,  are  die 
most  important  eireumstances  of  the  case. 
Every  thang  else  is  of  a  trivial  and  subordinate 
nature.  But  let  us  see  what  the  panel  ia 
alleged  to  have  sai4.  No  positive  evidenee 
has  been  adduced  to  prove  any  part  of  bia 
speech,  eacept  a  few  words  at  the  end  of  tlier 
passage  quoted  in  the  indictment,  and,  so  for 
as  I  have  observed,  you  have  onlv  the  uncer* 
tain  evidence  of  one  person  to  tnese  words# 
I  shidl  remark  upon  the  words  in  the  indiel« 
ment. 

"  That  our  sufferings  are  insnpDortp.ble»  ie 
demonstrated  to  the  world.**  I  ao  not  any 
whether  their  sufferings  were  insupportable  or 
not ;  but  th^  appear  to  have  been  severe,  and 
the  people  were  met  for  the  purpose  of  com* 
ridering  them,  and  to  join  in  petitioning  for 
relief.    Here  I  presume  is  no  sedition. 

'*  And  that  they  are  neither  te&^Mrary,  nor 
oecasibned  by  transition  fix>m  war  to  peace,  ia 
palpable  to  all|  though  all  have  not  the  coumga 
to  avow  it.''  I  dd  iK>t  say  that  proposition  ia 
palnable  to  every  body.  Some  are  dispeeed 
to  uiidL  that  the  cahunity  has  been  occasioned 
in  eonsecpMnce  of  the  sudden  transition  flnoaa 
war  to  peace,  and  some  dispute  that  propo* 
sition.  Some  are  of  opinion,  that  if  we  had 
continued  the  wgr,  at  an  expense  of  a  hundred 
millions  a  year,  we  should  have  infollibly  so* 
cured  the  national  prosperity  and  greatnem*. 
I  shall  not  attempt  to  settle  these  points,  nor 
is  that  neeaaiafy  to  the  present  argument^  and 
I  beg  leMFC  to  protest  against  the  idea  Aat  1 
give  any  opinion  ufM>n  them  at  all.  Periwpo 
Mr.  McLaren  tnay  include  me  in  his  oensnrti 
for  my  wnnt  of  courage  in  not  avowing  mijp 
opinion. 

''  The  fSaet  is  we  are  ruled  by  men  only  a<>* 
lioitous  for  their  own  aggrandisement;  and 
they  care  no  further  for  the  great  body  of  the 
people,  than  they  are  subservient  to  their  ow« 
accursed  purposes.  If  you  are  convinced  of 
this,  my  countrymen,  I  would  therefore  pu) 


«Il 


and  Thomas  Bairdjbr  SedUion. 


A,  D.  1817. 


[83 


Ike  qifestioii,  «re  jmi  degeaerato  enough  to 
bear  it  ?    Shall  W€^  whose  forefathers  aet  limits 
to  the  all  grasping  power  of  Rome ;  shall  we^ 
iFiiyMe  fore&lheiaj  at  the  never-to-be-forgotten 
field  of  fiaaiKwkhurD^  told  the  mtghty  EdWard, 
at  the  bead  of  the  most  mighty  army  ever  trod 
•n  Britain's  soil,  '*  Hitherto  shalt  thou  come» 
and  no  further  f  shaU  we,  I  say,  whose  fore- 
^thtis  defied  the  efforts  of  foreign  tyranny  to 
eoslave  our  beloved  country,  meanly  permit,  in 
CHir  day*  without  a  murmur,  a  base  Oligarchy 
to  feed  their  filthy  Termin  on  our  vitals^  and 
rale  as  as  tliby  will  ?    No,  my  countrymen." 
A   oommentary  was  made   on  this  passage 
though  it  is  not  proved  that  the  panel  ever 
spoke  it.    The  prosecutor  takes  it  for  granted, 
without  evidence,  that  the  words  were  spoken. 
I  am,  therefore,  not  under  the  necessity  of  de* 
fending  these  words.    But  are  they  in  reality 
so  culpable  ?    Axe  they  seditious  ?    They  are 
mere  words  of  course,  in  expressing  those  pub- 
lic •  grievances   to  which  they  refer.     Every 
child  knows  that  they  are  the  common  and 
hackneyed  terms  used  by  petitioners  for  public 
reform^  and  (excepting  one  or  two  allusions^  in 
which  there  is  evidently  no  sedition),  if  they 
are. not  tame  and  feeble,  they  are  at  least  neither 
seditious  nor  inflammatory.    Every  word  ap- 
plies to  the  professed  object  of  the  meeting  in 
petitioning,  and  to  no  other  object.    The  pro- 
secutor applies  some  of  the  words  to  the  kmg, 
but  this  is  a  misconstruction  quite  unworthy  of 
my  lord  advocate.    Ministers,  and  the  pos- 
sessors of  borough  interest,  are  the  vile  Oli- 
garchy, who  are  said  to  feed  their  filthy  vermin 
OQ  our  vitals,  and  rule  us  as  they  will,  and  this 
attack  was  justifiable  in  the  way  it  was  made. 
What  would  avail  the  right  of  petitioning,  if 
there  was  no  right  to  petition  against  his  majesty's 
ministers  and  their  partisans  ?    Ministers  may 
be  impeached  in  parliament  for  their  public  con^ 
duct,  and  they  may  be  complainea  of  by  the 
people  in  their  petitions.    Are  petitions  to  par- 
mment  against  ministers  to  be  punished  ^ 
sedition  ?    What  have  we  here  ?    The  opinion 
of  the  panel  Chat  the  jninisters  have  not  acted 
in  an  honest  way,  or  as  ministers  ought  to  do. 
The  opinion  is  expressed  a  little  strongly,  but 
it  does  not  go  beyond  legal  bounds.    The  pe- 
tition was  afterwards  laid  before  parliament, 
and  was  received  with  respect.    Now  the  ques- 
tion before  yon  is  not,  whether  the  ministers 
are  culpable  or  not — not  whether  lord  Castle- 
xeagh  or  Mr.  Vansittart  might  bring  an  actioo 
lor  a  libel  or  defamation— >but  whether  there  is 
any  sedition  -  in  this   speech.     I   ask    you, 
imtber  there  is  any  sedition  ip  complaining 
of  these  ministers?    Sedition  is  an  attack  on 
the  sovereign  of  the  state— an  attack  on  the 
government,  not  on  the  ministers  of  the  go- 
▼emment.    You  may  attack  the  latter  in  any 
way,  without  being  guilty  of  sedition. 

jBot  frrther,  as  to  the  passage  about  the 
Ofigaichy.  It  is  generally  understood  that  a 
lew  penonsy  not  .exceeding  300,  are  possessed 
of  an  influence  in  the  House  of  Commons  that 
It  very  pernicious  to  the  state.    This  is  the 

voL  xxxni. 


Oligarchy,  the  government  of  a  fhw  by  uneon- 
stitutional  Influence,  alluded  to  in  the  paner^ 
speech.  Is  it  sedition  to  take  notice,,  even  by  ' 
allusion,  of  such  a  public  grievance  ?  Is  this 
sedition?  Against  whom  is  it  sedipon? 
against  tlfte  King?  against  the  Lords?  against 
the  Commons  ?  agaiast  any  branch  of  the  legist 
latore,  or  against  the  legislature  taken  as  a 
whole?  Jt  is  sedition  against  no  person  or 
legal  authority  whatever.  It  is,  indeed, 
directed  against  the  Oligarchy  itself,  which, 
in  the  opinion  of  the  petitioners,  is  the 
worst  enemy  of  the  King,  Lords  and 
Commons.  The  King,  Lords  and  Commops 
ought  to  be  independent ;  and,  if  an  uncon- 
stitutional infloenoe  rules  over  them,  is  it  se- 
dition to  complain  of  that  influence  P  Every 
friend  to  the  constitution  will  complain  of  it, 
if  he  supposes  it  to  exist.  I  apprehend  there 
is  nothing  in  this  part  of  the  charge;  and  while 
M'Laren  denies  having  used  these  expressions 
about  our  rulers,  I  say  there  is  no  sedition  in 
them.  I  would  say  so,  even  if  the  words  had 
been  used  where  no  petition  to  the  legislature 
was  in  contemplation*  But,  considering  that 
^e  meeting  was  called  for  that  purpose,  * 
nothing  can  be  more  unquestionable  thaa  that 
such  language  was  not  seditious. 

I  come  now  to  the  last  of  the  words  quoted 
in  the  indictment,  and  I  hope  to  satisfy  you 
that  there  is  nothing  seditious  to  be  found  in 
them.     Allow  me   here   to   remind   you   of 
McLaren's  situation  when  he  made  (his  speech. 
It  has  been  proved  that  the  task  of  opening  the 
meeting  was  imposed  on  him,  contrary  to  his 
inclination,  and  came  upon  him  rather  unex- 
pectedly.   It  was  indeeo  proposed  to  him  eight 
days  before  the  meeting,  but  he  was  unwilling 
to  undertidce  it,  and  immediately  before  the 
meeting  be  pressed  Mr.  Samson  to  take  the 
business  off  hb  hands.    An  hour  before  the 
meeting  Mr.  McLaren  was  again  urged  to  open 
the  business;  and   being  in  some  measure 
compelled  to  it,  he  retired  for  a  very  short  time, 
and  made  some  notes  of  his  short  address  to 
the  meeting.    You  will  see  in  tho  whole  pro- 
ceeding tlve  most  evident  marks  of  haste.    It 
is  not  proved  that  the  last  sentence  was  written 
in  his  notes.     On  the  contrary,  it  was  not 
written.    He  was  placed  on  what  is  called  the 
hustings,  and  delivered  his  speech  during  a 
storm  of  wind,  rain  and  hail ;  from  the  noise 
of  which,  and  particularly  from  the  rattling  of 
the  hail  on  umbrellas,  it  was  almost  impossible 
to  hear  what  he  said.    Besides  the  words  con* 
taioed  in  his  notes,  part  of  which  he  spoke,  and 
part  of  which  he  omitted,  he  spoke  other  words 
which. were  not  in  his  notes..     What  these 
words  were  is  uncertaiD,«as  they  could  not  be 
perfectly  heard.    A  single  witness  told  you  be 
heaid  and  recollected  them,  though  he  could 
not  reoollect  any  other  words  of  the  paners 
speech.     There  is  no  great  reason  to  rely 
on  the  recollection  of  tiae  witness,  though 
there  is  much  reason  to  presume  that  the 
words  had  not  the  meaning  given  to  them 
by  the  public   prosecutor.     The  words   in 
G 


1071 


«7  GGOltGfi  til. 


Trial^Attmmdtr  M'Lartn 


(10* 


•rdkr  !•  point  out  from  reotat  «nd  domMit 
aotboiity>  how  tlearly  tbo  doctrine  of  renstance 
it  tecogntsed  among  all  who  hai*e  ttndied  our 
oonttttution,  and  h^w  boldly  it  is  held  foithy 
Ofan  4>y  the  official  adviMvs  of  the  crown,  at 
th^i  ultimate  resource  which  the  eonslittttion 
allbfdt  when  an  extrema  case  shell  aivive. 
flow,  no  nror^  extreme  oase  can  be  soppooed^ 
than  that  of  the  prince  setting  himself  m  op- 
yiosition  to  the  voice  of  bis  whole  people,  and 
lifaat  is  the  onl^  sense  which  cen  be  put  on  tiie 
fMSsage  here  in  craestion.  Resistance  is  a  la- 
mentable and  a  dreadful  remedy ;  but  h  may 
lie  a-  necessary  one :  and  though  we  ought  to 
tsdce  it  for  granted  that  the  necessity  will  never 
decur,  we  cannot  allow  its  existence  or  its 
#ficaey  to  be  qaestioned.  ]t  is  a  tnie,  bat 
awful  maxim,  and  not  fit  to  be  canvassed  irre- 
▼erendy  in  conversation,  publie  speeches,  or 
|pcA>Keations.  But  in  d«0enoe  of  my  client,  I 
ai^  that  it  is  a  tree  maxim, '  and  that  there  is 
oeitber  treason  nor  sedition  in  stating  it,  as  is 
dome  in  this  pamphlet. 

I  shall  notfifttigue  you  by  going  over  all  the 
jfmssages  whit^are  cited  in  the  indictment,1)«(t 
BhaH  only  trouble  yon  with  one  or  two,  in  order 
to  settle  die  sense  and  constraiftioo,  and  do- 
e^rmine  what  was  truly  and  really  the  scope 
of  the  whole  discussion  on  this  occasion.  You 
were  told  that  the  qoestion  lies  here  (and  I 
agree  that  it  does),  Whedier,  upon  the  whole, 
under  ai  pretense  of  petitioning,  it  appears 
ther^  was  a  purpose  ui  die  minds  of  these 
«eople  not  to  obtain  redrem,  but  to  excite  se- 
dition, tumult  and  confusion  from  one  end  of 
tfhe  kingdom  to  the  other.  That  is  the  ques- 
tsob  truly  and  -substantially;  and  yuu  are  not 
V>  dwelt  on  detadied  passages,  without  tahsng 
tnto  view  idl  others  -of  a  hem  ambijguotts  de^- 
•eriptiott : — ^you  are  to  judge  ofthetmportof  the 
whole. 

'  One  of  the  dtations-  in  the  Indictment  is, 
*That  the  House  of  Commons  b  not  really 
what  it  is  called ;  H  is  not  a  House  of  Com- 
mons. At  present  we  have  no  rspresentatives*" 
Now  this  seems  to  me  just  such  a  way  of  stating 
the  thing,  as  when  a  person  nys,  This  is  no 
bouse — this  is  no  dinner — ^this  is  no  speech, 
meaning  it  is  not  what  it  ought  to  be.  The 
mode  of  expressing  the  opinion  is^somewhat 
strong,  but  mat  is  its  roeanrag.  It  is  said  in 
the  pamphlet,  ^And*a  House  of  Commons, 
but  the  latter  is  corrupted ;  it  is  decayed  and 
worn  out ;  it  b  not  really  vrhat  it  is  called ; 
it  is  not  a'  House  of  Commons."  It  is  then 
explained,  '^  The  House  of  Commons  in  its 
original  composition  consisted  only  of  Com- 
mons chosen  annually  by  the  universal  enffrage 
of  die  people.**  Ihete  is  the  difference  be- 
tween what  it  is  and  what*theperson  speaking 
conceives  It  ought  to  ,be.  when  we  wish  to 
say  a  thing  is  not  what  it  ought  to  be,  are 
sometimes  express  our  meaning  by  saying  it 
!s  not  at  all ;  and  when  a  person  means'  td  say 
that  the  representation  or  the  people  is  not 
what  it  ought  to  be,  he  may  naturally  enough 
express  bis  meaning  by  saying  that  (her£  is  no 


representation  at  'all.  Ihe  statement  of  4his 
veiy  opinion  has  ofien  been  given  in  this  way, 
and  has  never  been  challenged.  But  it  is  not 
on  my  authority  that  I  mi&  you  to  take  thia 
explanation^  It  Is  given  in  express  tanss'ife 
the  subsequent  parts  of  die  very  speech  froea 
urhieh  the  expression  is  quoted. — ^The  orator^ 
after  some  ferther  disseitatiun,  goea  on  to  sty, 
''Will  any  man,  then,  possessed  of  commun 
sense,  say  that  this  is  a  House  of  Gommoaa 
agreeabie  to  mtr  CemtUuHony  or  that  it  is  a  FAfft 
representation  of  the  peopled  AH  this,  vo« 
will  observe,  is  in  the  same  speech,  and  it 
must,  by  every  rule  of  construbtioo,  be  taken 
along  with  what  went  before  to  explain  and 
modify  those  more  general  expressions.— f^iWl 
same  explanation  occurs  in  fife  other  passages 
of  the  pamphlet^-and  leave  no  room  wbatevev 
to  doubt,  that  what  the  omton  meant 'wmi 
merely  that  the  Hoase  of  Commm»  was  B«t 
what  they  wanted,  and  was  not  ajakr  md  e^nal 
representation  of  the  people^  Is  it  sedition  to 
say  so  !  I  for  tme  'think  ^e  present  lepwscai" 
ation  a  very  benefieial  one;  uid  though  It 
might  be  made  more  agreeable  to  theory,! 
should  not  expect  great  benefit  from  someeC 
the  change*  which  have  been  proposed.  Btft 
caA  -it  be  cidled  a  &ir  and  equal  repicsentatioti 
of  the  people  in  any  sense  of  the  word? 
There  is  nardly  any  person  in  Kilmarnock  who 
possesses  a  vote. — 1  do  not  say -there  iaany 
disadvantage  attending  the  prmnt  represent- 
.ation,  but  other  persons  may  thiidc  difterentlr; 
and  sure  I  am  tnere  are  plausible  grouaids  for 
any  one  sayingp,  he  womd  like  to  see  the  ffs* 
presentation  reduced-  nearer  to  the  theory  of 
the  Constitution.  Upon  sjrstem  and  prrndpla 
the  representation  ought  to  be  altered  in  somo 
parttcidars,  though,  upon  tike  whole,  I  do  vec 
expect  the  mtgbty  erocts  from  any  aiteiutioii 
which  some  people  do.  The  passage  In  que»-> 
don  is  a  short,  raetorical>  pithy,  foreiMu  way 
of  expressing  the  speaker^s  opinions  ^t  ha 
obviously  meahs-  t&t  the  representation  is 
unequid,  that  it  is  not  sufSeient,  mid  not 
agreeable  to  the  theory  of  410*  Constitution 
That  a  man  should  be  prosecuted  -for  eedition 
for  appealing  upon  such  a  point  to  the  nutlNH 
rrty  or  Parliament  was  never  heard  of  before. 
But  it  has  been  the  ftte  ^  the  panels  to  be 
accused  of  arraigaing  the  Conrtitotion,  wtrile 
contending,  as  they  thought,  for  its  restoration 
to  ptirity  and  vigour. 

I  now  turn  to  flie  definition  of  sedition  in 
onr  laH^  books.  To  commit  sedition,  you 
must,  in  direct  tetms,  or  by  unequivocal  insfn^ 
nations,  excite  discontent  and  disturt^anoe 
against  the  present  state  ahd  cofnstiCuted  atf^ 
thorities  of  the  country.  Mr.  Hume,  «4io  ia 
not  supposed  to  have  looked  upon  aedition 
with*  any  extraordinaTy  lenity,  expresses  him- 
self thus:  ^It  reaches  all  dmse  practices-, 
whedier  by  deed,  word,  or  writings  or  of 
whiitsoever  kind,  which  are  Suited  and  im 
tended  to  disturb  tbe  .tninguillity  of  th^ 
State;— for  diapiirpose-bf  pfodttcing  piA>l§e 
tioi^le  or  commotion^  and  moving  fait  M n« 


100] 


ami  Ikomi  Sairdjbr  S^dUion* 


A.  D.  1817. 


1110 


j«iy!ft  iolfeoU  to  ifaft'diiiti**  mHteac^  or 
rabveni«i  of  tW«taliisht4  Oofenmeiii  and 
lanriy  or  iettled  6mh  and  order  df  duiigt/' 

Ben  MB^  bj  iriMft.iiialiMoeB  and  cpumofdes 
lio  iBaMntrs  «Dd  caplaiot  km  defimlion.-*In 
evoij  oe%  yott  'will  olntrva^  W  Jdikcs.it  an 
indispenttoie  qoalifiaition  that  there  thoidd 
be  "aaMe  dlracr  exhertatinB^to  the  people  to 


if f«.  Hum. ie  leAed  tmoa  as  a  great  advo* 
te  the:  cAwxi   in  'hi*  obeervatiOBa  mi 
Thu  tiMB  ut  wUdi  he  vrole  bii 
mi  thadavoft  thiaiohgeet  aie  tiip^ieeed' 
to  taie.girea  a  btaa- 1»  hii  .'opinBnMv  of  .whiaii 
he  ftraa  piehably  iwiaieihie.    There  iaa  pra* 
g  epiaioB  at  4etea'  to  ihis  effect,  in  the 
.OM  of -thb  ■daad'eepaeiaHgry-^aQBfQBiidcd 
io  all  paebeUilj^'tet  cMnnly  veey  geocndfy' 

('  Utty^  it,  %  ceaneoQ  oaiaiea 

faia-irealiee;  aad  oetlahd^r hia ar*< 

laeanied  aeluraeH 

go;    '  turn  heok  waa  pufaliihed  -leoeaaly 

ei  theieoantiy^ie^ 

*"  r£»r  2SS:; 

impul  'hia/opiBie»oD'theaohjec>j 
Yei^  alriflifar  'ind.  wgeroaely-  aa*  it  iaa«  he 
thrtigii  he ^edowp  th>  iawr^  it  wiii  he^eedt 
ha  gmipiqg!:aBd[i  compKheaMve 
doea-.net  iaehide  the..Ga«  oCbthe 
pMi%»  bet.  tint  eeefT'-ooe  efhia 


otMbe.peefde^iectite  tor  lh«Bieelreieoaie<  pert 
of  thet  pearee  liUeb  beloegs  to^  other  ihanda. 
Bet  ia  -the*  pteaeat  cae^  thaie  are  -oe  waade 

'idee,  te  here  bcea  aeteftaiaed 

iM^aotteef  the 

jopen  aa  oedinatiny 

pnrpeae.     There    are  'word%indned^ 

leeuediet  the'  idea^sf  ae^ 

ilncthe.jpeachoofi  Ma.  JMid« 


^jsaaeiew  $»dgfimf  kkead9% 
mMMhon  Mtfaflnae.verfti/tdrf^ 
IfamthJeipieniiieytathepett  ^Jthanffioiaat 
djnetnaiaphutriat  ee.'aaa<hear  ^  ii  bcmMa: 
Ibeoietor  aeswen  hiinaelfiths%(¥ItgiMrca 
c  ngAii  Al  %.  aoB^Uiti  ^fm^  t*e  Mkig  end 
Mk  JbaBBi  ajT  PMioeraT/iei^  h  riffbt  to  be^ 
bend^eed  febaned  ^■tarwe^ieier.  '  Let  oe 
thi»;dey  "tabiMe  the  pririlegeidf  oelr  f^ 
rioasCooetitvtion^  i^  vt- kiy  mtr  peiiiium  te> 
.^reAe^atod  aeeeit  oii^  figbteat  Men^end  aa 
firitoos;**  If  tera  aflQr  thing  eqemleat'  ia 
aeditioB  here. 

I  sight^pat  the  atafter  abo  to  die  test  eC 
wbet  the  pmionaM:  did»  Did  thej  oroaoise 
eay  sodhtwa  te.eomepoed  iirth?  :  Didahcv 
afflitte  thinlie»tadi  thei  Ufaited  IhshiHBP 
^h  PhUfaai^deeiaie  their ^^e^nirittaes  pam 
aieeet^.er jpmHde^iap  ee^  waj^fbetbeirfetuw 
ptnefts^ingBh-.tlB'-ahertP  arfaet  did  'tfief  do^r 
ThejKdidK:  jest  ullat. they  ytofterad  teido(,«** 
thi]r  pet^oDedPashaneet,  and. having  sent  off 

liouw  quietly-  to  tlnn 
Mo  mrelBig.-  hap  ever 


at  RilAamedi  sieoe  the  eTeeiiation  waa  nade 
in  Dean-Fbrh;  aad  if  that  ia  the  way  in  which 
the  people  are  to  attaviala  their  diatresses,  it  ia 
at  least  aa  inaeeeet  aameniag  npacoiaa  ai  the 
gin-shop.  Bot  we  most  go  berk  to  our  eeatar* 
Ue  prooteda»  '*  let  oe^  tl^etelbraf  (aseerery-eonp 
stiiMtional  aseans  toi  reeeaor  oer  ieat  tightly 
rights  which  oer  ancestors  ci^oyed  aad  eacr^ 
cised;  let  na.bt  finsi  asMi  neaMmons  iaifrnr 
resolres,  that  we  mU  not  hcdsMived  of  oer 
pHvifegea  any  leeger,  that  we  eiaiai.  theei  aa 
oar  bvtfarighty  and  hyowr  qmUmid  .ectttftHm 
tkmol  esedM^  shew  oair  enemies  Umi  we  iUtt 
ommckjf^  r^fffimmn,  mid  eiarpstiee^.and  thai  we 
want  nothing  bet  what  is  lor  the  gsneral  good 
of  the  ceeatfy/'  Bet  tbescv  it  baa  bean  se^ 
are  pteteeces»'  pot  on  to  disguise  the  real 
^okedness  of  their  designs.  1  tbink  yoe  eae 
iw.ne  dengar.  Gentlemen^  of  belieriag  thnh. 
'Whaterer  feutts  these  pdeple  may  have  oooi» 
tniHed^  1  em  eeeddent  yon  wiU  not  find  them 
gmkyefhypeorisy.  My  own  oaeviefion  is^ 
that  they  have  apdcen  nu>ra  rselentlir  than  they 
intended ;  but  I  am-  sure  yen  wtU  give  tha* 
credit  et  least -for  all  the  moderation  they  pro^ 

fees. 

Thcie  is  a  great  deal  more  to  be  said  on  the 
other  parts  of  this  pebhcation.  Mr.  Cmig 
makes  aa  do^ucat  oarengoe;  There  is  a 
great-  deal  of  poetry  in  his  steech.  **  Being 
then,  my  bretmreny  impelled  by  B«tessity»  let 
us  eppraach,  displaying  reesoa  and  resolutaeaa 
like -men  who  know  tWir  duty  tiul  their  ob^ 
Ject.  Yea,  witb  these- and  similar  princinlea 
ma^  we-  nndauntedly  ge  forward^  and  Hk* 
tegitimala  aens-come  to-te  years  of  mejority^ 
let  as  in  the  nacM  of  law  end  justice  demand 
the  inestimehle  end  dearly  pnrohased  beqeeat 
of  our  woithy  progenitors^  "that  we  may  enjoy 
it  oiMBeleps^  and  transoHt-  it  te  a  landing  poa^ 
terity^  And  30  aol,  Aweiting  the  fiat  of  hiak 
who»»agmdicd>  hot  the  pcmona  of  asee»  bvt 
htmndnili^fte  the  cries  of  th4:pecr,  and  ^ndeth 
the  caniaef-4ba  distiiesaad^  nlwaTa^mtingior 
oor  toeonmgemena  Me  $imem"0f  Ms  mpirtm 
ee<»  HtJdsiereeasded  for  our  instmetienyWdelKir 
ket  ineuMt  dtmmA  pteteikd  with  the  uiiust 
judge,  that  althongh,  witiieut  any  regard  to  hie 
high  obligations^  yet  wae  not  totally  destitnte 
of  that  piftnciple  which  aDakea  ell  bttnan  kind 
qnake,  when  reminded  of-  neglected  duty. 
Mny  we  be  actuated  by  the  same  oonrage  te 
eo  aad  do  likewise."  Here^  again^  tou  see 
how  diatinody  their  iriews  were  limited  to  the 
peeodhl  iteratten  of  petitions. 

The  purpose  of  the  Aesolutions,  too,  haa 
been  cntirmy  misnndMetood.  In  the  Mh  it.ia 
saidt  ^  That  the  dibt;  now  amewiting  Co  nearly 
l'jCNK>>milliDna^.ba*bedn^con(racted1mthe  pro»> 
seeetiod-of -onqust  and-nnneceaaiky  watVy^by  h 
odmspt  admihistMieai^  enifeMUr ''supported 
bymrlioeae  .of  ComaMdS)  v4eah  conjidt  be 
said$  <  with' enyt^jnsiaeef)  ft)  tee './fair' eetf  apni 
ft^rCMntalismiof'  ttte^icenhtifyt  buV.irbiidi  4&t 
themmet  part'  is'  cdmpeted'of'^nHir  pet  In  by 
a  berough  fetatiuny  who  hihr^ruanrped'tbevights 
of  the  ^ple^^endwho  bymaiae 


Ill]         £7G£0R6&III. 


Trial  ofAlmmier  M*tAr«n 


inn 


«otttrited  to  retttrn  a  majority  of  niemben  of 
that  House/'  Th^  fiicts  here  stated  are  trite 
and  stale,  but  the  passage  is  worth  noting,  as 
aUbrding,  atfd  that  in  the  most  anthoritative 
and  ofi/v  deliberate  part  of  the  pnblicatton,  the 
most  dear  and  complete  eridence  of  what 
Ibey  meant  when  they  used  ezpresfions  Titu- 
perative  of  the  present  House  ot  Commons. 

llie  9th  Resolution  is,  ^  Being,  therefore, 
impr^sed  with  the  tiwth  of  these  Resolutions, 
tiie  meeting  lesoHre  to  present  petitions  to  his 
Royal  Highness  the  Ftince  Regent,  and  to 
botn  Houses  of  Parliament,  requesting  his 
Royal  Highness  in  particnlar,  to  attemble  Por- 
luuneiU  without  delay;  to  call  upon  it  imme- 
diately to  adopt  such  measures  as  may  tend  to 
restore  to  the  people  their  undoubted  right  in 
the  representation,— to  order,  in  the  name  of 
the  people,  an  immediate  reduction  of  the 
taxes*  ai\d  the  standing  army,  the  abolition  of 
all  unmerited  pensions,  sinecures,  grants,  and 
other  emoluments,  as  the  surest  way  of  esta- 
blishing on  a  firm  and  lasting  basis  the  rights 
of  the  crown,  and  the  privileges  of  the  peo- 
ple ;  and  that  in  all  time  coming,  no  person 
who  has  an  office,  or  place  of  pront  unaer  the 
King,  or  reoeiines  a  pension  from  the  Crown, 
shall  be  capable  or  serving  as  a  member  of 
the  House  of  Commons.  12.  Wm.  III.  c.  2." 
It  is  quite  plain  from  the  context,  that  it  is 
ike  whole  Parliamenif  and  not  the  Prince,  that 
is  called  upon  to  order  an  immediate  reduction 
of  the  taxes,  the  standing  army,  and  so  forth ; 
—so  that  the  eloquent  exposition  of  the  lord 
advocate  upon  this  passage  was  founded  upon 
a  manifest  misconception  of  its  meaning. 

I  have  only  to  cidl  your  attention  to  the  next 
resolution,  which  clearly  shows  the  scope  and 
extent  of  their  views  and  threatenings,  ^  And 
the  meeting  hereby  resolve  to  make  known  to 
his  Royal  Highness  the  Prince  Regent,  and  to 
both  Houses  of  Parliament,  that  thegf  wiU  not 
ctate  tending  t^i  <me  fetOion  efUr  another ^  ami 
ming  every  conttitutiomd  meagare  insured  to 
them  by  the  laws  of  the  country  till  they  obtain 
the  restoration  of  their  rights  auul  privileges  as 
men  and  as  citizens  of  the  stale."  This  is  the 
only  practical  resolution  they  came  to ;  and 
even  this  was  not  acted  upon,  for  it  appears 
that  no  other  meetings  have  been,  held,  or  pe- 
titions transmitted  fVom  that  time  to  this.  In 
the  same  way '  the  meaning  of  the  words, 
**  Shall  we  bear  this,''  or  similar  terms,  is, 
throughout  explained  in  the  dearsst  and  most 
precise  way  to  lie,  Shall  we  bear  our  sufferings 
without  complaint,  vrithout  munnuring,  with- 
out stating  our  g^evances  by  application  to 
the  proper  quarter?  **  So  far  Irom  ceasing  to 
complain,''  they  say  **  the  damour  of  our  cries 
for  ledms  shall  ne#er  cease  to  ring  in  their 
•ars^  till  the  abhorrent  temple  of  oonruptiOB  be 
annihilated,  and  the  banners  of  freedom  vrave 
from  the  heights  of  Dover  to  the  mountains  of 
the  Vorth."  That  is  a  lofty  passage,  and  foil 
of  eloquence  certainly.  But  in  every  one  of 
the  speeches,  in  whidi  it  is  anxiously  stated, 
not  only  that  there  are  grievaaoes,  but  griev- 


ances which  could  not  be  bonie,  ^rhat  do  they 
propose  to  do  ?  Do  they  propose  to  attadc 
the  throne?  No;  they  merely  say.  We  sdaU 
apply,  like  the  importttnate  widow,  and 
reiterate  our  clamour  till  we  waary  you,  or  by 
the  force  of  our  reasoning,  prevail  over  ytmr 
prdndices. 

There  was  one  part  of  my  leanied  friend  ther 
lord  advocate's  speech,  of  vrhich  I  am  really- 
unvrilUng  to  ssy  exactly  what  I  think,  or  ex- 
press the  feelings  it  excited.  I  mean  the  pas^^ 
sage  regarding  the  army,  .vrhen  he  spoke  as  if 
there  had  be«i  a  disposition  entertained  by 
some  of  those  at  the  meeting  to  induce  thr 
army  to  rebel  against  the  government.  The 
only  libel  I  have  heard  to-day  is  the  sup- 
posing, for  a  moment,  that  such  ah  intention 
could  be  entertained,  and  vrith  any  the 
slightest  hope  of  siibceBs.  7[he  policy  of  keep- 
ing up  a  standing  army  was  long  the  subject 
of  discussion  in  parliament,  and  the  dahger  of 
it  to  the  constitution  was  much  insisted  on, 
while,  latteriy,  such  a  danger  has  been  lean 
apprc4iended,  and  the  great  eonsideration  m 
questions  regarding  the  army  has  been  the  ex- 
pense which  it  necessarily  imposes  on  the 
country.  But  whatever  opinion  may  be  en* 
tertained  on  this  subject,  there  was  no  die- 
ciission  at  this  meeting  on  the  expedioicy  of 
a  standing  army;  and  Sie  passage  in  questtoa 
is  most  manifestly  intended  merdy  to  meet 
this  common  and  almost  obsolete  Whig  topicy 
and  to  show  that  it  was  not  from  that  quarter 
that  danger  was  to  be  apprehended.  I  say- 
that  this  was  obviously  its  meaning,  if  indeed 
it  is  not  rsither  to  be  regarded  as  a  piece  of 
mere  dedamation  upon  a  very  popular  and  in-* 
viting  theme.  Nobody  at  present  thinks  iU  of 
the  army:  on  the  contrary,  it'  is  scarcely 
possible  to  speak  on  any  public  subject,  vritfch- 
out  taking  an  opportunity  of  saving  something' 
in  the  praiw  ot  the  army;  and  .to  endeavour 
at  a  piece  of  eloquence  in  its  favour  ie  tlie 
ordinary  style  of  writers  of  all  descriptions. 
The  hope  of  seducing  it  from  its  duty  and 
allegiance,  if  it  were  not  too  wicked,  is  mr  too- 
absurd  to  be  entertained  even  by  the  moat 
desperate  conspirators. 

In  another  speech  it  is  said,  "  It  is  higb 
time,  when  they  have  robbed  us  of  our  money,, 
deprived  us  of  our  friends,  violated  our  rights^ 
and  abused  our  privileges," — it  is  high  time 
for  what  ?  to  take  up  arms  and  overthrow  the 
government  P  no  such  matter— only  ^  To  db- 
numd  redreu  far  such  treatment,*'  The  orator 
then  goes  on,  "  But,  methinks  I  h^ar  theaa 
say,  we  are  determined  to  give  no  redress,  we 
have  huddled  ourselves  intoplaces>  pensione 
and  sinecures,  and  we  are  determined  to  hold 
them.  This  I  think  is  thdr  language."  Wdl, 
wdl,  what  then?  In  ihis  desperate  case, 
proceeds  thia  seditious  orator,  ^  We  must  seek 
redress  from  another  quarter ;  we  wmtt  petiOom 
hiirdyaihighnett  the  Prinu  Rtjgent  to  remove 
our  grievances !  to  give  us  a  psriiament  of  our 
annual  choosing,  yUndk  will  represent  us  tn  a 
form  agreeable  to  our  vrisbes^  and  i^ceahlft 


1191 


(Uid  Thomas  Bairdjbr  Sedition. 


A.  D.  1817. 


[114 


to  the  constitiitioo."  Is  it  said  that  this  is 
hardly  a  coTer  for  professed  rebellion?  In 
answer,  here  is  another  passage,  ^*  The  unani- 
mity of  our  sentiments  and  exertions^  agrtedbU 
io  tke  constUtUion,  will  once  more  dispel  the 
dood  which  eclipses  the  resplendent  and 
animating  rays  of  liberty,  and  will  again  make 
her  shine  forth  in  this  once  happy  country 
with  unimpeded  effulgence.^  The  last  speech 
ia  the  pamphlet  ends  thus :  *'  Permit  me  now 
to  conclude  in  the  inimitable  language  of  our 
celebrated  bard,  and  friend  of  liberty,  Robert 
Boms — May  tyranny  in  the  ruler,  and  licenti" 
manea  m  the  people,  find  in  each  of  us  here  an 
ioexorable  foe.-' 

There  is  another  passage  where  allnsion  is 
made  to  re?erend  hirelings,  upon  which  the 
lord  advocate  bestowed  his  eloquence  as  need- 
lessly, and,  I  am  sure,  with  as  little  effect  as 
on  the  passage  about  the  army.  In  that  quarter 
of    the    country,   a   tendency  to    fanaticism 
rather  than  to  irreligion  might  be  expected ; 
as  it  was  there  that  presbyterianism  first  struck 
root :   and  in  this  very  pamphlet  you  will  find 
passages  similar  to  those  employed  by  the 
CoYenanters  in   the  Tales  of  my  Landlord. 
"^  It  is  there  you  will  see  bow  Egypt  flourished 
under  the  wise  administration  of  Joseph;— 
and  what  the  heard-hearted  and  inquisitorial 
Pbamioh  did  for  the.  sons  of  the  Nile ; — it  is 
there  you  will  see  what    Solomon  did   for 
Israel ; — ^with  what  Jeroboam,  Nebat's  wicked 
son,    and    odiers,  brought  upon    the  (now) 
wandering  sons  of  Jacob.    It  is  there  you  will 
see    what    Nebuchadnezzar,    £vil-Merodach, 
and  fielshazzar,  did  for  the  now  extinct  Baby- 
lonians ; — ^how  Persia  rose  under  Cyrus,  and 
sunk  under  the  bloody  Cambyses,"  &c.  &c.    I 
am  confident,  indeed,  that  you  cannot  look 
into    any  part   of  the   publication,  without 
seeing  great  reverence  for  scripture/— «  calm, 
temperate  reliance  on  the  assistance  of  Provi- 
dence   in   all   good  acts, — ^a  reliance  to  be 
founded  on  good  moral  conduct  and  prayer. 
The  term,  ^  reverend  hirelings,"  employed  by 
tliese  rude  orators,  might  be  considered  per- 
haps as  not  undeserved  by  certain  clergymen 
who  leave  their  proper  duty  for  making  pro- 
selytes in  politics ;   and  persons  who  do  not 
agree  with  them  might  say,- with  any  purpose 
but  an  intention  to  bring  discredit  on  religion, 
that  they  had  been  hirelings  •  in  certain  parts 
of  their  conduct.    Nothing  is  more  innocent. 
The  attack  might  perhaps  have  been  made  in 
a  more  decorous  manner,  but  surely  there  is 
no  pretence  for  saying  here,  that  there  is  any 
design  to  excite  a  spirit  of  irreligion. 

I  have  now  gone  through  the  publication ; 
and  I  leave  it  to  you  to  determine  on  its  na- 
ture,--only  reminding  you  that  it  is  a  funda- 
inental  rule  of  law,  that  a  seditious  intention 
19  necessary  to  constitute  sedition.  You  will 
therefore  consider,  whether  the  object  of  these 
people  was  merely  to  petition  parliatnent,  or 
whether,  under  the  false  and  assumed  pre  text 
^  petitioning,  their  object  was  to  excite  sedi- 
<MB  aiBong  the  peonter*aBd  to  spread  misohief 
VOL.  XXXlfl, 


and  disturbance  ip  the  country*  In  judging  of 
this  you  will  remember  wliat  you  heard  in 
evidence  as  to  Mr.  Baird,  of  whom  you  werjg 
told  that  he  would  be  the  last  man  to  join  ia 
any  treasonable  or  seditious  enterprises,  and 
that  he  was  accustomed  at  all  times  to  check 
the  folly  and  infatuation  of  his  neighbours. 

I  have  already  detained  you,  I  am  afraid, 
unreasonably  long,  but  I  cannot  leave  the  sub- 
ject without  taking  some  notice  of  the  prece-  , 
dents  respecting  trials  and  convictions  for  se- 
dition which  have  taken  place  in  this  Court . 
They  are  all  of  very  recent  date,  having  oc- 
curred within  the  memory  of  most  of  us ;  I 
believe  there  was  no  trial  for  sedition  earlier 
than  the  year  1792.  There  are,  indeed,  some 
ancient  cases  thinly  scattered  in  the  records  of 
the  Court,  but  in  all  these  the  crime  was  ac- 
companied with  other  offences,  by  which  the 
sedition  was  aggravated.  There  is  no  case  of 
mere  sedition,  earlier  than  the  date  I  have 
mentioned.  That  date  must  strike  you  at 
once  as  affecting  the  character  of  all  those  pre- 
cedents. For  it  is  never  to  be  forgotten,  that  . 
they,  one  and  all,  took  place  at  a  time,  when 
the  minds  of  Juries,  and  of  Courts,  and  indeed 
of  all  persons  in  the  country,  were  in  a  state  of 
unprecedented  alarm  for  the  safety  of  the  con- 
stitution ;  at  a  time  when  acts  and  expressions, 
which  undoubtedly  would  not  have  been  taken 
cognizance  of,  in  happier  and  more  serene 
seasons,  were  considered  as  of  the  most  danger- 
ous tendency  ;--at  a  time  when  this  country 
had  recently  engaged  in  an  alarming  war  with 
a  powerful  enemy, — a  war,  not  arising  from 
disputes  about  territory  or  points  of  national 
honour,  but  which,  proceeding  from  enthu- 
siasm and  madness  on  the  one  hand,  and  un- 
defined fear  and  resentment  on  the  other, 
arrayed  every  individual  in  both  countries  in 
personal  hostility  against  every  other:—- a  war, 
indeed,  proclaimed  against  all  established  go- 
vernments, by  a  coyntry  whose  whole  interior 
exhibited  a  phasis  of  confusion  and  crime,  and 
breathed  forth  a  pestilential  air,  which  threaten- 
ed to  spread  the  contamination  through  all 
the  neignbouring  regions.  We  fought  not,  as 
in  former  wars,  with  men  formidable  only  by 
their  numbers,  their  skill,  or  their  courage,  but 
with  men  whom  we  imasined  to  be  armed 
with  a  deadly  poison,  and  zealous  to  spread 
contagion  wherever  they  went.  In  tliese 
times,  not  only  was  there  a  raging  war  with 
that  natjon,  which  was  loudly  threatening  an 
invasion  of  our.  shores, — but  it  is  impossible 
to  deny  that  there  was  an  established  centre 
of  rebellion  at  home,  looking  up  to  France  as 
the  great  redresser  of  wrongs,  asking  its  assisV 
ance  to  rear  up  every  where,  the  cottage  on 
the  ruins  of  the  palace,  and  to  carry  into  exe- 
cution the  most  visionary  and  absurd  plans 
for  the  regeneration  of  society.  Coidmunic»- 
tions  of  a  most  dangerous  nature  were  pasi^ing 
between  the  two  countries,  and  the  crisis 
seemed  as  imminent  as  any  the  world  cve^r 
saw.  Such  was  the  distressing  condition  of 
this  eountty^  tl|at  it  was  impofsible  to  remit 

m 


rr53 


57GEdRGBMlL 


Ttiftl  of  Alexander  M^Lnttn 


CIM 


for'an  instant,  tlie  mo^t  Watcbftil  police  over 
the  bonduct  of  the  disaffected.  And  what  was 
kctually  their  cdndaqt  in  tJbat  season  of  general 
alarm  P  Why,  they  were  found  in  innumerable 
multitudes  holding  'meetings  thronghout  the 
whole  land, — not  going  out  one  da^  under  a 
feelhsg  of  distress  to  petition  the  legisUture, — 
but  forming  themselves  into  permanent  dnd 
affiliated  societies,  corresponding  with  one 
another  throughout  the  whole  kingdom,  and 
Ivith  societies  abroad,  and  smitten  to  such  & 
degree  with  an  ambition  to  imitate  every  thing 
in  France,  as  to  adopt  French  names  and  ibrms 
in  their  associations.  In  short,  an  organised 
system  of  disaffection  was  formed^  calculated 
to  strengthen  the  hands  of  the  enemy,  and  to 
unite  all  the  domestic  desperadoes  that  could 
Be  mustered  against  our  own  established  govern- 
ment. Such  wajs  the  condition  of  the  country 
wben  the  trials  for  sedition  were  first  brought 
on.  In'  the  course  of  ten  months,  societies 
had  been  established,  not  only  in  every  con^ 
siderable  town  ip  Great  Britain,  but  in  every 
Kttle  village,  which,  as  branches  of  the  ffenersu 
society,  appointed  delegates  to  it.  I  tnink  I 
km  not  exaggerating  the  condition  of  the 
oountry  at  that  time,  with  a  view  to  suggest, 
nor  do  I  give  this  as  an  apology  for  some  of 
the  proceedings  which  then  took  place ;  but  I 
state  it  as  it  really  was,  that  you  may  know 
the  true  character  of  those  proceedings. 

The  first  trial  was  that  of  Mr.  Muir.^  It  is 
with  pain  I  recollect  that  case.  With  all  due 
respect  to  the  Court  and  the  jury  that  tried  it, 
]E  cannot  think  it  a  precedent  to  be  commended. 
1  cinnot  but  consider  it  as  an  occurrence  to 
be  lamented — since  unfortunately  it  cannot  be 
Ibrgotten.  Tet,  in  that  case  there  were  many 
circumstances  of  aggravation,  of  which  there 
is  DO  shadow  to  be  found  here.  Mr.  Mnit 
was  a  member  of  the  society  of  the  Fiiends 
of  the  People  in  Kirkintilloch  and  in  Glas- 
gow. He  had  gone  to  France,  where  he 
Tematned  till  aft.er  the  war  was  declared,  fie 
came  back  to  Ireland,  and  assisted  at  several 
Wetings  of  the  United  Irishmen,  and  then 
return^  to  this  country,  when  he  was  arrested 
and  brought  to  trial.^  Ilie  charges  against  him 
were  relevant.  He  was  accused  of  having 
excited  the  jpeople  <o  disaffection  to  the  king 
and  the  established  goTemment  t  he  was  ac- 
cused of  having  industrioiuly  circulated  the 
work  entitled  the  Rights  of  Man,  and  other 
publications  of  a  pernicious  and  seditious  de- 
'tcriptioD.  I  am  old  enough  to  have  attended 
Ibe  trial  f  I  was  not  then  at  the  bar,  but  I  per- 
fectly remember  the  leading  features  of  the 
case.  I  think  the  evidence  was  scanty ;  but 
still  the  charge  was  relevant ;  and  if  the  proof 
bad  been  satisfactory  he  was  guilty  of  sedition, 
and  therefore  liable  to  punishment.  At  that 
tim^  there  was  a  combination  which  seemed 
pregnant  with  danger  to  all  existing  establish- 
ments,— a  combination  formed  by  societies  all 
over  the  country,  who  appointed  deputies  to  a 

•     •.41ldw.MtHi.St.Tt,  tiT. 


gen'etttl  meeting.  The  ciitmlattoii  i>r  ioM 
works  as  Paine's  Rights  of  Man  Was  at  that 
period  likely  to  produce  mncH  evil.  I  believe, 
however,  that  feelings  Of  compassidn  'for  Mr. 
Mnir  were  general.  I  hope  they  are  perfect^ 
consistent  with  ntter  detestation  of  sedhion: 
I  "believie  isentiments  of  regret  fdr  the  neCes^ty 
which  led  to  his  .prosecution  and  conviction 
were  universal;  and  I  say,  Vrift  all  due  snb^ 
mission  to  the  law  and  the  verdict  of  the  Jnrv^ 
that  very  many  loyal  subjects  thought  there 
was  loom  for  a  verdict  of  acquittal^— that  the 
bulk  of  the  nation  regarded  the  sentence  as  ikB^ 
ilecessarily  severe. 

The  next  case  was  that  o?  Fyshr  Plilhier?* 
Re  was  also  connected  with  the  Friends  of 
Freedom,  and  had  circulated  a  political  haaft^ 
bill  in  Dundee  and  in  Edlnburgn  add^ssed  h> 
jthe  Idwest  people.  Hundreds  and  hnndred^ 
of 'these,  addressed  to  all  and  sundry,^had  beeti 
by  him  committed  to  the  winds  of  heilven ;  and 
surely  to  sow  such  doctrines  broadcast  in  ^\$> 
reckless  way,  without  pretence  of  anv'speciiil 
end,  was  criminal  and  punishable.  'Ine  hdtid^ 
bill  contained  much  inflammatory  niatfer,'atiil 
was  proved  to  have  been  circulated  by  him. 
ft  was  addressed' to  alt  and  sundry,  and  at  m 
time  when  the  minds  of  the  people  were  ia'  1 
dangerous  state  of  irritation.  No  direct  Te^ 
medy  was  proposed  for  any  of  the  evils  com- 
plained of,  ana  the  only  obj6ctinvieW  seemed 
to  be  a  dangerous  usurpation  of  j^o^er.  I"S^ 
there  was  real  sedition  in  that  c^e;^d  thkt 
it  had  no  resemblance  to  the  present, 'whiffy 
there  Was  merely  one  meeting,  and  one  set  of 
speeches,  for  the  special  Object  of 'pl^&pafing  {^ 
petition  to  parliament-^wiUi  the  {Trepanttion 
of  which  the-whole  business  actually  cidSed. 

The  next  and  the  onlv  other  cases  WcyeihttsD^ 
of  the  members  of  the  British  Coki^n^6o*^. 
Skirying,t  MargaTot,J  Gerrald,§  and  othet^^ 
and  certainly  the  existence  of  that  tfttradidi-- 
nary  association  gave  a  peculiar  character  ^to 
the  whole  of  these  cases.  That  foi'midalAe 
body,  you  may  remember,  was  composed  of  % 
set  of  persons  acting  as  delegates  from  the  re^ 
motest  parte  of  Great  Britain,  and  who  hadFM 
lawful  cusiness  in  this  place,  -and  no  dtB^ 
visible  purpose  (han  to  excite  disaMe^doii^^ 
who  haa  no  such  thing  in  view  as  petitionitijg 
the  legislature^  but  who  wished  to  organise  a. 
power  independent  of  it,  unknown  *to  3ie  con- 
stitution, and  incompatible  with  the  existence 
of  its  great  institutions.  They  bad  priv)Eite 
meetings,  and  committees  of  emergehcy,  isotoe 
of  which  were  only  to  act  in  the  event  bf  a& 
invasion  by  a  hostile  force.  £ven  taking  th6 
statement  which .  was  made  b^  those  pe)rspns 
in  their  6wu  defence,  and  looking  to  tiie'si&ai> 
'tion  of  the  times  abivad  ahd  at  home,*  it  i» 
impossible  to  doubt  that  it  was  ne<^esstir^  to 
put  down  the  Convention,  and  to  inflict  ^  ' 

: \ f  f 

•  2  How.  Mod.  St.Tr.  237. 
+  2  How.  Mod,  St,  Tr.  391. 
t  2  How.  Mod.  St.  Tr.  603. 
\  2  How*  Mod.  St.  Tr.  8d3. 


nn 


and  Tk9m<u  Baird/or  SedUUn. 


A.  D.  1S17. 


jwhmQnt  on  SQch  as  Skirripe.  I  need  |o  no  ; 
mithier  kd^Q  4«taib,  bu(  shaU  loerelj  mention 
that  tbeie  ipia  real,  actual^  and  palpable  seji- 
tipu  u^  that  case.  Mj  burpos^  ln,^lluding  ^9 
them,  is  to  cbntnat  them  with  the  pr,esent 
m^;  ^  e^  in  thosija  tiiq^y  and  under  all 
j^^  deplppiblf  ^itciunstajices  ^liichl  haye 
ni^jpiKta,  tkis  c^fi  voutd  bare  t>^en  Tiewed 
▼eiy  did^i^tly  fyom^  ti^e  cases  then  tried. 

The  tpalof  l^bert^n  aqd  Berry*  tool^  place 
jU  a  \^v^  tu  more  critjioal  than  th^  present. 
Zlier  wm  tri^  for  luinting  and  publishing  a 
bpok  entitled  Tfi6  Pojitiq^l  Progress  of  Scpt- 
Imj^,  whldtif  9^X0  hurt^  tejidency,  went  far 
l»^ond  ik^  pauppblet  now  in  question.  $uc1^ 
fpa  such  t^e|  were  said  to  have  been  illegally 
mposed,  and  the  copstitutiop  held  out  as  ^ 
foere  con:g)irac7  of  the  rich  aghast  tlt^e  poor : 
]r?t  tne  punisrument  infllcte4  was  thref  mooter 
ipamisoxunent  to  one  ^f  th^ip,  an^  six  moiitlif 
to  the  otli^er.  There  lyere  ^^orse  cf|^es  in  1793. 
|n  one,  I  pean  t|i^t  of  Norton  a^xd  Anderspn,^ 
^t  jm  proved  that  persons  who  were  pieinbers 
at  the  society  of  tl^  Friends  of  the  People 
bad  gone  iRto  the  cs^f — insisted  that  several 
ipf  the  ^oldieri  should  j[oin  the  society — and 
giveuyaf  a  tqast,  George  the  third  ^n4  lastf 
gnd  aap)^a^ou  to  a)l  crqwped  heads  ^  yet, 
ifpan  ^cl^  Verdict  qfcpnyiction,  nine  months' 
imprisonment,  oi^Iy,  ^aj  in£icted«  Twp  qa^es 
occi|rrie^  in  1802.  In  oue  of  them,  under  very 
gfpss  ciicumstaJDces,  for  the  man  y[as  a  soldier, 
4i|d  had  said  he  was  sorry  the  king  was  not 
k|iot,  and  tha^  l^fi  could  sc^  his  neart^s  l>Iop4 
|)fi^*^aybnet|  th^  punishpient  intficted  was 
<^  ino^t)^*s' itQpnsQppp^ot^  and  banishineni 
nim  ^cojtUnd  for  two  years.  The  fi^er  ^M 
^  c^  q(  jpi^  J^firjey  (I  m  sorry  that  should 
batf^  Imn  tiie  naine^  who,  for  wishing  de- 
Hfractipi^  to  ^ipg,  que^n,  and  royal  family, 
^ffttef^  fhx^  jpontKs'  imptisdQment. 

'  I  liave  gttoted  these  casef  to  show,  that  ^ven 
il^'tifQ^  ffjien  gfpa(  rlgojir  ^vas  jfiecesaary, 
fl^^f  fipch  wor^  than  th^  present  werf 
^tmieptiy  vieif  ^ j  j^^  ^  say^  considering  that 
we  fiaod  ppw  iQ  ▼ery  difierent  times,  and 
||ij^  ^  P^PJQ  jf  ^[ppainocV  ha4  confessedly 
no  miction  of  holding  ponventipnf  composed 
0f«e!e^(e^irofiiirariops  quarters,  or  of  pro- 
Ip^ljpiiiig  s^diiioii  in  apy  w;^y,  but  were  hungry 
aiiimtf,  Vho  Qi^Iy  m^t  op  one  occasion  to  pe- 
titioQ  for  something,  they  knew  not  what,  which 
th^  tho^pl^t  ^ap)^  i^ord  them  relief,  and 
Bpver  ^ar^9nred  any  purpose  of  exciti;ig  or 
fjmf  m  ^ebeUioo,  but  continued  to  prosecute 
lAfsir  yi^f^  by  ^ onstUutioA^  pieans ;  can  you 
itmic^^  that  if  the  paoiie  ^riot^s  cases  which 
{'hay^  bpfD  con^djeriug  i]5ceived  such  sjigjit 
m^ce,  thii  present  case  ^buld,  eveji  then, 
iaf  e  been  ^shongbt  worthy  of  anv  punishpaent 
a  9^  pr  th^  ^jiy  iJ^e^^irtber  shou)d  p/p^  oe 
j^m^  than  ^^mg'.tfe  ^2^^\s  Ifoipe  a  jiftle 

M«w^l?i*h^, '  9fff  Tj^'^T  %^*fned,'  to  hp 
jn<>fe  cautib^  on  jspy  Ifilur^  occa^oin  T 

t  ?low.  ^.  ^.  tf,  f. 


L119 


In  urging  this  to  you,  I  think  I  may  refef 
to  an  authority  wlach  cannot  be  either  de- 
spised or  avoided — I  mean  the  authority  of 
the  wfaol/e  kingdom,  of  the  whole  law,  of  the 
whole  Q^jesty  and  power  of  the  king,  ministers, 
judges,  and  legislature  6(^  England— of  that 
country  which  has  had  the  longest  experience 
of  freedom,  and  has  learned  most  thorough])^ 
by  that  happy  experience  now  little  real  dange^ 
there  is  in  the  aisconteiits,  or  even  the  occa« 
liohal  violence  of  a  free  people.  There,  it 
would  appear,  (hey  are  not  so  easily  alarmeq 
—not  so  easily  frightened  at  words,  or  so  apt 
to  suppose  that  the  constitution  can  be  brougui 
into  hazai'd  by  a  fi^w  intemperate  expressions. 
I  4^0)^^  therefore,  the  example  of  England  as 
it  stapos  at  this  presept  moment.  Will  anv 
one  say,  that  what  passed  at  Kilmarnock  win 
bear  any  comparison,'  fn  point  of  indec^iig[ 
and  indecorum,  to  what  is  notoriously  passing 
in  England  ^very  hour,  and  under  the  imme- 
diate observation  of  the  judges  and  of  parlia^ 
meot.  The  orations  of  Bunt — the  publication! 
of  pobbett  and  oth^s— the  meetings  ip  Spa^ 
(elds  and  Palace-yard,  are  all,  up  to  tnis 
hour,  unchecked  and  unpunished — aod  are 
met  only  by  ridicule  and  precaution.  Ip  the 
Eovf  1  Kxcoange,  at  the  doors  of  the  l>ouses  0^ 

{)arliament,  at  the  gates  of  the  psdace,  pub- 
ications  are  opeply  sold — ^oot  400  copies  of 
dull  speeches,  out  hundreds  of  thousands  of 
^aily  and  weekly  effusions,  containing,  every 
one  of  the(p,  mutter  far  wors^  than  what  is 
found  in'tljis  publication.  I  am  sure  no  006 
can  look  into  them,  without  being  satisfied 
that  they  contain  strong  excitements  to  dis- 
content, and  (l^at  their  authors  are  fKontioually 
^f^orking  upon  the  feelings  of  the  country ;  yef 
they  are  still  holding  forUk  their  doc^inef 
without  danger  of  interfereirce.' 

See,  then,  what  is  the  course,  that  all  the  wis- 
dom in  council,  and  policy  of  government,  i^ 
that  land  of  freedom  have  held?  What  is  the 
course  they  htfve  pursued  with  regard  to  thct 
portion  of  the  people  with  whom  originated 
apy  disorder  that  exists  in  the  country,  and  the 
people  to  whom  indeed  the  disorders  are  stiu 
connned  ?  Notwithis^nding '  the  situation  of 
England  for  the  last  six  months,  this  is  (hejir^ 
and  the  only  trial  which  the  present  aisturbed 
state  of  the  countiy  has  produced.  Really,  t 
should  not  have  expected  to  find  the  first  trial 
in  this  country/  They  that  are  whole  need  not 
a  physician,  'fhere  has  been  breaking  of  frames 
in  many  counties  in  England  for  eighteeti 
months ;  and  y^t  his  majesty's  governmisnt  have 
a  merciful  reluctance,  and  ^re  slow  to  call  the 
people  to  account  even  for  those  great  excess^ 
while  there  is  any  reason  to  t^ink  that  they 
tave  been'  pix)duced  chiefly  by  tpeir  misery. 
^p^  If ith  regard  tp  fiip  pplijtical  commotions  ip 
th,9  j(netrop6li^,  they  kno^  that  a  check  to  ihe 
'jpint  of  freedom  oughj'  pof  lo  be  giv^p 
wit^<?yl  ;ie;ces^ityiTr-jtTift  the  presp^  tuipults 


tavp  jyqt  fgrj^^j^'qpjijnucli  from  wickedpess  <Jf 
^eart,  a^  frpjp  the  'p^essuVe  of  ipise,ry ;— an4 
j^itj^  >  ga^xpal  ijolic^tuge,  t^ey  J^opjt  watchftilly 


ii9l 


57  GEORGE  III. 


■'Trial  ofAUxander  McLaren 


C120 


and  corapassionalely  upon  tlie  people  as  if  they  ;  gemm  of  their  countrymen  is  so  apt  to  hurry 


.■were  in  the  delirium  of  a  fever ; — and  they  spare 
them  as  deluded  and  mistaken  only  for  a  season. 
That  is  the  tone  and  temper  in  which  the  equal 
justice  of  England  is  dealt,  and  sure  I  am  it  is 
admirable,  when  compared  with  that  which 
would  lay  every  newspaper  open  to  prosecution^ 
and  stifle  the  voice  of  freedom.  Nothing  but 
extreme  necessity  and  immediate  danger  can 
justify  the  rearing  up  state  prosecutions..  Ac- 
cording to  the  example  of  England,  we  should 
be  slow  to  punish  the  people.  In  England, 
much  more  has  taken  place  to  justify  prosecu- 
tions than  has  yet  occurred  in  Scotland.  Looking 
at  home  where  no  riots,  and  no  rebellion  exist, 
andwhere  a  great  mass  of  misery  has  been  more 
quietly^and  more  soberly  borne  than  in  the  sis- 
terkingdom,  ^e  should  not  be  rash  or  hasty  to 
stretch  out  the  hand  of  vengeance  against  those 
^  whose  case  calls  rather  for  compassion  than  pu- 
nishment. Believe  roe,  gentlemen,  it  will  be 
no  honour,  and  no  glory  to  us,  to  set  the  exam- 
ple of  severity  on  such  an  occasion ;  nor  will 
It  redound  in  any  way  to  the  credit  of  our  law 
or  our  juries,'that  we  were  more  sharp-sighted 
and  jealous  than  our  neighbours  in  weighing 
ihe  rash  words  of  our  fellow  citizens,  at  a  time 
when  they  were  suffering  the  extremity  of  dis- 
tress.' At  such  a  season,  expressions  t&i// be 
.used  which  it  is  impossible  to  justify;  and 
offences  will  be' committed,  which  will  again 
disappear  in  seasons  of  prosperity.  A  vigilant 
police,  in  such  a  case,  is  all  that  is  wanted. 
Absurd  and  impr6per  expressions  at  meetings 
for  petitioning  parliament  hardly  deserve  no- 
tice ;  and  a  facility  of  obtaining  convictions  for 
government  on  trials  for  such  offences  is  uni- 
rersally  recognised  as  a  mark  of  public  servi- 
lity and  degradation.  It  is  always  most  easy 
for  the  worst  governments  to  obtain  such  con- 
victions,— and  from  the  basest  people.  Affec- 
tion to  the  constitution  is  planted  substantially 
in  the  hearts  of  the  subjects  of  Great  Britain ; 
and  it  is  only  those  governments  which  are 
doubtiiil  of  their  own  popularity,  that  are  given 
to  torture  and  catch  at  words,  and  to  aggravate 
slips  of  temper  or  of  tongues  into  the  crimes  of 
sedition  and  treason.  If,  on  account  of  some 
rash  or  careless  expression  at  public  meetings, 
people  are  to  be  punished  as  guilty  of  sedition, 
there  is  an  end  to  all  freedom  in  examining  the 
measures  of  government.  The  public  expecta- 
tion is  alive  to  the  result  of  tne  first  of  these 
trials;  and  I  say  it  will  be  no  honour,  and  no 
glory  to  you,  in  such  a  case,  to  set  the  first  ex- 
'umple  of  finding  a  verdict  which  would  subject 


ihem,— especially  when  they  find  that  far  worse 
excesses  are  pardoned  in  England  to  the  phleg- 
matic English, — in  whom  they  have  far  less  a- 
pology.  *    ' 

I  have  exhausted  you  and  myelf, — but  I  have 
one  word  more  to  say.    This  is  a  case  above 
all  other  cases  fit  for  the  decision  of  a  jury, 
— a  case  in  which  you  can  expect  but  little  as- 
sistance from  the  Court,  and  in  which,  I  will 
venture  to  say,  you  ought  to  receive  no  iroprea* 
sionfrom  that  quarter,  but  judge  and  determine 
for  yourselves.    The  great  use  of  a  jury  is,  not 
to  determine  questions  of  evidence,  and  to 
weigh  opposite  probabilities  in  a  complicated 
proof.    Its  high  and  its  main  use  is,  to  enter 
into  the  feelings  of  the  party  accused,  and 
instead  of  entertaining  the  stern    notions  of 
fixed  and  inflexible  duty  which  must  adhere  to 
the  minds  of  judges  who  administer  inflexible 
law,  to  be  moved  by  the  particular  circumstances 
of  every  particular  case — to  be  touched  with 
a  nearer  sense  of  human  infirmities,  and  to 
temper  and  soften  the  law  itself  in  its  applica- 
tion to  individuals.  It  is  on  this  account  alone, 
I  believe,  tliat  in  foreign  lands  the  privilege 
of  jury-trial  as  existing  in  this  country  is  regar- 
ded as  so  valuable.    And  certainly  its  vuue 
has  always  been  held  chiefly  apparent  in  trials 
for  alleged  political  offences, — with  regard  to 
which  it  is  the  presumption  of  the  law  itself^ 
that  judges  might  be  apt  to  identify  themselves 
with  the  crown,  as  they  belong  to  the  aristocra- 
tical  part  of  society,  and  to  those  great  establish- 
ments  which  appear  to  be  peculiarly  threatened 
when  sedition  and  public  disturbance  are  ex- 
cited.   Whether  there  is  any  reason  for  this 
distrust  is  not  now  the  question;  and  in  this 
Court  I  am  perfectly  assured  that  we  have  no 
reason  whatever,  to  doubt  the  impartiality  of 
the  Bench.  But  it  is  not  to  them  that  the  coun- 
try looks, — that  all  Britons,  and  all  Foreigners 
look,  in  questions  with  the  crown,  when  as  head 
of  the  state,  it  demands  punishment  on  any  of 
its  subjects  for  allecced  want  of  obedience. — In 
all  such  cases,  the  friends  of  liberty  and  justice 
look  with  pride  and  with  confidence  to  the 
right  that  a  man  has  to  be  tried  by  hjs  peers. 

If  this  question,  then,  is  left  to  you,  and  to 
you  only,  I  am  sure  you  will  not  easily  take  it 
for  granted  that  the  panels  at  the  bar  were 
actuated  by  seditious  motives;  You  will  judge^ 
whether  in  the  publication  of  this  fooli^,  in- 
temperate and  absurd  book,  there  was  an 
intention  to  excite  disorder  and  commotion  in 
the  country,  and  that  in  this  conduct  my  client 


people  to  punishment  in  the  circumstances  of  \  was  blind  to  his  own  interest,  and  to  the  evil 


these  panels.  Even  if  you  think  that  the  crime 
is  doubtful,  I  trust  you  will  not  be  disposed 
'  lo  lend  yourselves  to  the  over-zeal  of  his  ma- 
iesty's  professional  advisei*s  in  this  part  of  the 
kingdom.  I  say,  I  trustyou will  not  shew  a 
'  disposition  to  follow,  where  the  keen  and  jea- 
lous eyes  of  persons  in  authority  may  spy  out 
matters  of  offence';  and  that  Scotsmen  will  not 
be  forward  to  construe  into  guilt  those  excesses 
of  speech  into  which  they  know  that  the/emif 


consequences  to  his  country.  The  essence  of 
the  crime,  I  can  never  too  often  repeat,  con- 
sists in  the  intention;  and  in  judging  of  this 
you  will  take  all  the  cii^umstances  and  eM  the 
acts  of  the  parties  into  your  view.  In  a  sea- 
son of  great  distress,  one  single  meeting  was 
held  for  petitioning  the  Legislature, — a  pur- 
pose which  redeems  every  thing  that  might 
nave  been  amiss  in  their  proceedings.  No- 
thing but  a  petition  to  Pariiament  was,  in  fact. 


121J 


Stid  fkomat  Bairdfor  Sedition. 


A.D.  mi. 


tids 


the  result  of  the  meetingj-^anil  400  copies 
t>aly  of  these  foolish  speeches  vere  printed. 
No  steps  were  taken  to  promote  disorder,  but 
the  most  entire  tranquillity  then  and  after- 
'wards  prevailed. 

When  I  think  of  these  things,  I  can  have 

BO  doubt  at  all  of  the  issue  of  this  trial.    Yon 

cannot  but  perceive  that  the  panels  have  not 

been  proved  guilty  of  sedition ;  for  they  have 

oot  been  proved  to  have  said  or  done  any  thing 

wrickedly  and  felotuousfy,  or  for  the  purpote  of 

exciting  tumult  and  disorder  in  the  country. 

Their  general  conduct  and  character  render 

such  an  imputation  in  the  highest  degree  im« 

-probable;  and  the  particular  facts  Which  have 

been  proved  are  so  far  from  supporting  it, 

that,  when  taken  all  together,  they  are  obviously 

inconsistent  with  its  truth. 

SUVMING-UP. 

Lord  Justice  C2erft.~Gentlemen  of  the  Jury; 
Although  you  have  heard  from  the  learned 
Omnselwho  has  just  now  addressed  you, 
.  with  infinite  ability,  on  the  part  of  one  of  the 
panels,  that  this  is  a  case  more  fitted  for  the 
-particular  consideration  and  final  decision  of 
a  Jury  than  of  the  Court,  and  that  here  the 
-Court  has  less  concern,  and  less  to  do,  than  in 
any  other  species  of  trial ;  I  am,  much  afraid 
-that,  in  the  view  which  I  entertain  of  the  duty 
incumbent  on  me  on  this  occasion,  I  shall  be 
under  the  indispensable  necessity  of  still  de- 
-taining  you  for  some  portion  of  time,  notwith- 
standing the  fatiguing  duty  you  have  had  to 
'  perform. 

In  consequencerof  the  alteration  of  the' law 
'  relative  to  proceedings  in  this  Court,  it  is  no 
longer  neeessary  to  take  down  the  evidence  in 
*  writing,*  but  it  is  still  the  duly  of  the  pre- 
siding' Judge  to  sum  up  that  evidence  to  the 
Jury  who  are  to  decide  upon  it;  and  notwith- 
'  standing  what  the  learned   gentleman  said, 
'(and' I 'am  not  disposed  to  find  fault  with  his 
remark),  I  shall  state  for  your  consideration, 
the  nature  of  the  charge  and  the  evidence  ex- 
hibited against  the  prisoners  at  the  bar.    But 
even  if  I  were  not  enjoined  by  the  pbsitivc 
authority  of  statute  to  do  so,  I  should  not 
*  have  hesitated,  in  such  a  case  as  the  present, 
to  state  to  you  my  view  of  the  evidence  and 
of  'the  law  applicable  to  it.     It  is  your  pro- 
vincej,  indeed,  to  judge  of  the  whole  of  the 
case;  but  sitting  here  as  a  guardian  of  the 
rights  and  privileges  of  the  people,  and  bound 
as  I  am  to  administer  the  law  according  to 
the  best  of  my  judgment,  I  have  to  state  to 
you,  clearly  and  distinctly,  my  view  of  the. 
law  of  this  case,  and  then  to  leave  it  to  you  to 
do  your  duty,  as  I  shall  now  endeavour  to  do 
nrae. 

The  Indictment  exhibited  against  the  pri- 
soners at'  the  bar,  contains  in  the  major  pro- 
position, a  general  chairge  of  sedition,  and  in 
the  minor  you  have  the  narrative  of  the  fietcty 


•  Vide  Stat.  23  Geo.  III.  c.  45,  made  per- 
petual by  Stat.  27  Geo.  III.  c.  18. 


I  in  reference  to  whic%  the  public  prosecutor 
subsumes,  that  they  are  both,  or  one  or  other 
of  them,  guilty  of  the  crime  of  seditidn,  actors 
or  actor,  or  art  and  part. 

You  will  have  observed,  that  the  evidence 
which  has  been  laid  before  you  is  of  a 
different  nature  as  it  affects  the  different 
prisoners.  One  of  them  is  charged  with 
having  delivered,  at  a  meeting  held  in  the 
neighbourhood  of  the  town  of  Kilmamock« 
a  speech,  which  the  public  prosecutor  states  to 
have  been  of  a  seditious  nature,  containing 
a  number  of  inflammatory  remarks  and  asseiv- 
tions,  calculated  to  degrade  and  bring  into 
contempt  the  Government  and  Legislature, 
and  to  withdraw  therefrom  the  confidence  and 
affections  of  the  people,  and  fill  the  realm 
with  trouble  and  dissention;  the  manuscript 
of  which  speech  he  is  charged  with  having 
afterwards  delivered  to  a  printer,  for  the  pur- 
pose of  its  being  printed.  And  with  regard 
to  the  other  prisoner,  it  is  stated,  that  he  pre- 
pared for  the  press  an  account  of  the  proceed* 
mgs  at  the  meeting,  which  account  containt 
the  speech  above  referred  to,  and  others  also 
alleged  to  be  of  a  seditious  and  inflammatory 
nature,  and  that  he  assisted  afterwards  in  its 
circulation,  by  exposing  and  actually  selling  it 
in  his  own  shop. 

It  will  be  necessary  for  you  first  to  consider 
what  is  the  evidence  of  the  facts  as  it  applies 
to  both  and  each  of  these  prisoners.  After* 
calling  your  attention  to  the  facts,  I  shall  make 
some  observations  on  the  law  of  the  case; 
and  I  shall  then  desire  vou,  upob  these  facts 
and  that  law,  to  consider  whether  there  is 
ground  for  the  conclusion  of  the  public  pro- 
secutor. 

It  ma^  save  you  trouble,  to  state  to  you  at 
the  beginning  the  definition  of  the  crime  of 
sedition,  as  given  to  us  by  an  authority,  which 
is  one  of  the  most  respectable  with  regard  to 
the  law,  'that  can  exist  in  any  country  what* 
ever.  I  do  not  know  that  there  is  any  founda- 
tion, in  point  of  fact,  for  the  supposition  which 
was  mentioned,  that  the  author  I  allude  to 
had  ever  been  suspected  of  having  any  par- 
ticular bias  in  giving  a  view  of  this  depart- 
ment of  the  law.  I  never  before  heard  that 
such  a  notion  existed  in  the  minds  of  the  peo- 
ple. Bnt  sure  1  am,  if  they  who  read  his 
book  look  to  the  authorities  and  decisions  to 
whicli  he  refers,  they  will  be  most  decidedly 
of  opinion,  that  he  has  expounded  the  law  ia 
the  most  clear,  able,  and  satisfactory  manner. 
Mr.  Hume,  the  author  to  whom  I  allude,  gives 
this  general  description  of  the  crime  of  sedi- 
tion*:' **  I  had  formerly^  in  drawing  the  line 
between  sedition  and  leasing-making,  a  proper 
occasion  to  explain  the  general  notion  of  uiis 
offence,  and  I  shall  not  now  attempt  any  fnr^ 
ther  to  describe  it  (being  of  so  various  and 
comprehensive  a  nature),  than  by  saying  that 
it  reaches  all  those  practices,  whether  by  deed, 
word,  or  writing,  or  of  whatsoever  kind,  which 


•9^ 


•  Vol.  ii.  p.  484. 


193]        ^  GiORQE  HI. 


TrSfitqf4hevi4er  M'^tarm 


ClH 


ve  suited  vdA  ioteo^eA:  to  dwtiiri)  die  tra^r ,  eottposHiaD  is,  ipeseralljrff  that  it  is  of  an  iof 


•iiiltity  of  (h«  sjtaCs,  for  tlie  paFpo9«  of  pro* 
jttoing:  piilHie  Uooble  or  oommotipq,  aad 
moTiDg  his  Majesty's  sitbje«|0  to  tfa^  4i<liK9b 
i«Mitan«Q»  Of  subvanioft  of  tibte  ealabUshed 
goaaniiaent  and  Uws^  of  sattlod  temo  and 
flfdorof  tW0gi, 

>^U»dot  ^s  deseripdoift  woald  fall  a  woilf: 
^mcb  a«  it  haft  boon  i^esarvod  finr  tba  ifiicked* 
nass.  of  tha  fireseot  age  to  produae)*  whicb 
finQM.  teatoli  tJbai  all  aftonaro^y  and  hereditary 
iiiilk»  or  all  dancal  dig)ailie«  and  astablisl^ 
flMBts  of  r^fioB)  are  an  abuse  aad  mwrp- 
ationi  eootrary  to  reason  and  jnstieei  and 
VAftt  to  b^  aoyloQgef  saifered  or  contintied. 
Or»  tbougb  ilie  pieoa  abouW  not  set  out  upoa 
ia  bfoad  a  principle  at  tbis»  if  it  argue  (ia 
ttOOMMMi  vilb  the  manv  oomposilions  which 
baiFo  lately  been  pressed  upon  the  world)  that 
1km  po^er  of  the  king  is  oTeiYrown,  and 
tn^il^  (d  miff  k$$ard,  to  be  retrenched ;  or  that 
iba  CMUIK>ns  are  a  more  nominal  and  pre- 
landed  rapresentative  of  the  people,  whose 
laws  are  entitled  to  no  manner  of  regard;  or 
that  the  whole  state  is  MX  of  corruption,  and 
tbai  the  people  ought  to  take  tba  office  of  re- 
imaiaf  it  upon  ihentselyes.  All  axhortations 
of  this  l|ind,  whetbar  any  eommotiop  follow  on 
them  or  not  (for  if  any  do  fpUow,  then  it  wiU 
d^and  on  tbedegveOf  fashion, and  immediate 
ooeaston  of  that  dtsoirbanca.  whether  it  is  not 
treason  in  those  who  partake  of  it),  are  un- 
dottbtad  acts  of  aeditioay  beiag  oaloulated  and 
employed  for  iba  direct  purpose  of  loosening 
$b»  hold  whicb  thaOovemman^  has  of  the  opi?- 
siions  and  alfesiioaa  of  thfi  people,  and  Ibua 
pveparing  tbam  for  aeto  of  rasistftooo  or 

aggression.*' 

.  SoTeflal  of  the  jostaooes  wbi«h  ba  i^vep  of 
Ibii  «nme  vvwe  alraady  read  to  you,  and  I 
*aed  not  repeat  tbi&m.  Bat  J  refer  to  anotbar 
■assage  further  oa,  in  whish  tha  fmthor  ooi^ 
knH  and  ilkiatftiat  bis  opinion.  ^'Tbf  lai^ 
aon  ia  aU  these  eases  is  the  aaiae*  The  oriana 
#f  aadiiian,  tbensfore,  Has  ia  tba  stirrifig  of 
anob  hnvoiirs  mt  naturally  tend  to  ohange  apd 
eaasmelios  in  iha  stale.  $o  pear,  indaed,  is 
Hia  alUanoe  betwaan  sediiioa  aad  treason^  that 
i£f  instead  of  sowing  the  seed^  of  a  hostile  dis- 
position lia  the  GoTemiaent,  or  preparing  e^ 
materials  m  in  tkne  may  kindle  into  a  A^me, 
She  offender  abatt  seek  the  aame  object  jpaore 
faBSBgdwaely,  by  a  direct  end  dtifioite  exb^- 
atian  to  aha  fe»ple  to  rise  at  ibat  particular 
jeaaoo  ^asid  f oniyaActvre,  as  ad^ant^ao^s  for 
^Mwogtbairiends;  this  measure  in  like  ipan- 
«K,  aa  a  oaosidtafeioa  to  hvf  war>  -seems  tp 
liatiaitiivf  kH  than  mo  aot  for  ^o«ipaBsiiig  M^e 
4eash  of  tiie  ktiw,  beiagadofidad  and  laa- 
MM  sftep  ilolvaiidM  the  doing  of  <that  fvbiph 
^siinotrbe  id^ne  witbqnt  tba  plai9  d^oftor  of 
iba  Soaaaetgn'a  Mie^"** 

Agftta^sn  ftpeabing  of  a  dialiaotitw  Vrhioh 
Jhaabtvdayibatti'gfauiead.-a^botaiieaa  aeiM  a«ji 
Mid^edi&^a;'  Mr.  fiama  eiipiiBSMS  bimself  Jin 
tfwsewoidsl:  ^i[  idl-lhat  can  be  «ttddf  -the 

♦  Vol.  ii,  p.  4d4.       t  Ibid.^p.  4W. 


jSammatory  kind ;  such  as  by  the  principles  it 
inculcates,  and  the  obloquy  it  throws  out  oa 
tbe  mamagepi^  pf  public  ^airs,  ^nds  t|0  thf 
infusion  of  jealousy  and  discontent  among  tb^ 
inultitude;   but  without  -  prgiceedi^g   to  any 
petrosal  of  a  plan,  or  set  of  active^  ope^on^ 
as  grounded  upon  these  p^ciples,  and  fit  19 
be  follow^  in  the  exis^ng  state  of  thiosa; 
this  may  with  propriety  be  referi;ad  to  too 
head  o(  verbal  sedition.    It  was  for  a  co^npOr 
sitioa  qf  this,  character  that  Robertson  and 
3erry*  were  convicted,  as  has  been  meatione^l 
and  William  Stewartf  was  outlawed  upon  a 
charge  of  the  like  nature,  on  the  11th  March, 
1793.*'    So  that  you  see  it  most  distinctly 
Stated,  tbat  words,  if  of  an  inflamqiatoqr  nv 
ture,  though  not  followed  by  active  operauoo^ 
will  amount  to  verbal  sedition. 
1^  I  shall  content  myself  with  reading  to  yon  one 
other  passage,  without  offering  a  word  of  my 
own  upon  the  subject.    Thijf  passage  refers  to 
the  distinction  between  the  crime  of  ^editiop 
and  that  of  leasing-making,  which  is  still  recog- 
nised in  our  law,    ''  Bi^t  sedition  is  a  crime  of 
afar  wider  and  more  various  de^cripiivn,  aa 
wqll  as  of  adeepercbaraoter,  which  may  aq^a^ 
ly  ba  oommitted  in  relation  to  any  of  ta^  oth^ 
powers,  orders,  or  parts  pf  the  public  consti- 
tution of  the  land,  or  to  any  class  or  division 
of  the  society  of  its  inhabitants,  and  withooA 
the  use  of  special  calumnies  or  slanders  against 
the  king,  or  any  other  individual ;  as  by  the 
forming  of  combinations,  the  taking  of  reso- 
lutions, the  circulation  of  doctrines  and  opiu* 
tops,  or,  in  general,  the  pursuit  of  any  coarse 
qfmetffwra  and^vf^ioa^  such  as  dirfietbr  tap4* 
to  r^stan^e  of  the  legis^atvira  or  estfiblisbafl 
govemmant,  or  to  the  aew-modeUiag  fif  tba 
st^te.  without  the  ai|tbority  of  lav*    |fo  inaee- 
tiv^,  therefore,  bow  violent  soever,   og^dnal 
avooaicby  ipraieral,— np  abuse,  the  n^oft  oat- 
rageoos,  of  the  Bri^b  oonstitution^-r-iio  pr^ 
ceediogs,  though  ever  w^  plainly  tenoiag  to 
abolish  tNt  vanerable  sy8teD^  ^d  set  up  a 
pair  form  of  government  in  its  room,  wonld 
jOftify  a  charge  of  leasingrmaking,    Becsuisf i 
iboi^  all  iovolving  the  state  and  office  0^  tbe 
]pfi%  «s  part  of  the  constitution,  such  pr^ 
jai[^  are  ^veiled  against  the  yho)e  svstea, 
^d  are  pot  amoved  out  of  special  groove  ^ 
tbe  pria^  upon  the  throne,  but  spring  frojpa  a 
d^p^  ^d  more  roalignai?it  prii^ciple,  as  wa}l 
jss  empk^  pnore  direct  and  afore  extensive 
speans  ihifk  that  of  mere  scolder  of  tbe  per^o^ 
and  condyM^t  of  tjve  king.    Thu^  ^edition  if  ^ 
prppsr  orine  against  the  atate,  and  balds  the 
^a^pj^p  aftar  tr^asott,  to  which  )^  fS  p^y 
9Ali^,  s^  ivbich  it  an  ofWn  but  ]^  ji 
interval,  precede.    The  other  is  a  persca^l 
J^fe^mt  ^^  'l^bfd  injury  o&ned  \t>  *tt]ie  fiing 
^4  ?9rhieh  ^f  laff  i<msi<l«»  W  »?  W^^ 
IPQ^serioitts  Mrtt  -tMm  pijber  ^jiyiesof  V^ 
riiis,  partly  by  .xpayon  ^i  ^be  j"*^  r^ggg^  it  t^ 

♦^JHow,bIod.St..Tf...79^     '   * 
t.?.Il9W.J«p4.fit.'Sr,?i5- 


1051 


and  Thomat  Snirifor  Sedition* 


A.D.  1817. 


MSB 


to  iliB't^ifife  *^  triliqwllfy  of  Ui9  imA  of 
the  state,  ilie  nodt  vti^a^atp^mm  in  the  Imvd ; 
luid  perthr  hy  reason  of  the  poMible  evil  m- 
floence  of  sach  an  example  on  the  affections 
ted  di^[MMitions  of  his  sahjeets." 

HRfing  tbnsexplainedy  frdm  what  I  oertainfy 
ttketo  be  nndoaMed  aQthority,  what  oonsti- 
totes  sedition,  I  have  to  stete  to  you  what  is 
eqaa^'  dear  in  point  of  law,  and  what  it  is  of 
essen&l  importanee  you  sboaUl  keep  hi  f  iew, 
and  upon  which  iMth  sides  of  the  bar  aie 
agieed, — that  it  must  be  held  as  the  landa- 
mental  fnle  of  your  conduct  in  4eeiditt|^  this 
ease,  thst^by  the  hew  of  ScoUatHl  your  duty  is 
not  limited  to  a  tonsidetation  of  the  iaots 
Inefelr,  but  Unt  it  is-  your  protince  to  take 
info  view  the  naOrre  ef  die  sj^eecbes  and  wn- 
tittgeomplBined  of,  as  well  as  the hAi  of  poh- 
lis&^^aUd  I  state  to  you  in  the  words  used 
hy*a  dj!ifhi|liished  Jvkdge  m-a  former  ease  of 
a&ilioB,  though  not  etfadtly  parallel  to  the 
fMesenl,  that  it  is  not  only  yimr  right  and  pri- 
vilege, lUit  Jfour  unquestionable  duty,  to  say 
^Mietfier  seditioa  has  biete  committed  or  not.* 

Hiving  paved  the  iray 'to  ttie  cottsideration  -of 
tile  qo^s&n  before  us,  Weare  first  to  consider 
fvhat  is  the  evidence  irhieh  fte  prbseontor^itt 
i^aced  astoM'Lartmhaviagdehvcffedmspcaah 
Itetainhi^  passai^  suchas  these  set  forth  in- the 
MdEtaoent.  You-vrill  teooHBOt^tiiatyoa  had 
BMBght  before  yeu  Mr.  Andftw  Finnte,  k 
iMhiess  on  the  part  of  the  'Cr##n,  blit  who, 
In  reAMncetb  «e  whole  of  the  transactions 
indter  ^saasW^iatidn,  w«as  MiBBetf,  ^toweeitain 
exteMy  a  pikty  concerned.  He  was  a  menp> 
1»er  of  the  coiMnittee  ttiat  -prepared  mttjltan  for 
the  ttiBefingy^as  himself  pnteent-at'  the  •  mfsofr- 
fagy-atfd  was-hfterwardsfselected^ij  take  a«  lead 
in  the  si£boeq«eDt  pMeeedings.  '¥ett'«ie  se 
judge  eflfis  ^^tidenGe,*^hkh  he  ^Kj^pcafod  lo 
give  hi  m-fiUr,  open,  ted 'Mndidmanaier.  I 
kee  no  «hfll6tion  to^fhe  wai|;ht  of  his  etiteMe. 
Iieaays,flifttheiswot«hle  to  iptek  diMMRitly 
is  tolhe^w%ole  of  lil^fiiveii^epeeoh,  bnt  4bait 
to4he  litter  pen  of  it  he  did  pay  piiaieilir 
Mtea^ioii.  'lie  ii«m«  (balhtf 'heardhhttdiAHer 
lhese-^M>iiAs:  «We>WiU  ftr^^'^^^'let  ns  lay, 
eurpetici0br^lfthe1hM:^f-lh#«hrMa,  who»e 
«ts  tfor  angttsrptinee,  whoM<9enetous  mme 
irin  ifi^lhse  his  ear  to  the  eriesof-Ms  people, 
which  he-is  botmd  to  do  by  the  eoliftimtioflal 
iiws  ef  Iris  eountiy ;  and  we  are  thereby  boofid 
to  give  him  our  allegiance :  but  if  he  shoidd  be 
so  infotdated  as  to  torn  a  deaf  ear  to  the  gene- 
ral cries,"  or,"  voice  of  his  people,  to  hell- with 
eur  attef^anGe."  This  is  the  whole  of  the 
passage  as  -for  as  the  'witness  reeolleots.  It 
was  ^  the  close  of"  the  speech  these  words 
ivere  used.  He  stafe^,  that  the'Svoids^  **  And 
we  aie  ihenhy  boond  to  give  him-eur  aMegi- 
aifeee ;  bat  if  he  should  beeo  infos«aied'«s  to 
turn  a'deaf  ear  to  the  geneMd  eries  ^'  ot  ^voioe 
V9  h^^jMOple^'^and  not  '^jSiifeMeo,"  »being 
tt|i  #oitis  soi«««pieDyy  melted  in  theiidieiment. 


•*HM>>*«*^i>ip> 


'^  See  Lord  Ahetvwmby's  sanmimg^p  in 
«he  ease  of  Fyshe  Pahie^«a^e  VoU  9.  p.  31^7. 


preeeded  these  words''  to  ImU  «dtb  mr  afl^ 
anoe."  He  is  positive  ^and  was  equally  so 
upon  hb  cross  oaanrination)  with  legasd  to 
what  be  heard  McLaren  say.  tie  states^  that 
the  words,"  to  hell  wadi  onr  allegiance^'* 
struck  him  as  strong,  and  that  thouffh  be  did 
ix)t  take  any  noees  of  them,  he  consMMred  tlMan 
so  strong  that  he  can  swear  to  diem.  Xon 
will  therefore  coasider  as  far  as  this  witneas 
'goes,  whether  you  have  not  a  deposition.  tQ>the 
very  words.  It  vriil  be  for  vou  to  jndge 
"whether  the  exact  words  cbaigta-An  Iheindiai- 
ioaent  have  been  proved  er  not,  or  whether,  te 
essential  parts  of  the  passage  ham  boan 
proved.  When  a  very  elase  affiniSy  is.  ■»• 
sCnictedy  it  is  for  lyou  la  coBsiisr-whatis.eiia 
foir  import. 

Another  vritnessvras  eaUedon  the  pact  ieff 
the  proseeulion,  iwho,  tbongb  he.givBs  ibat  an 
imperfodt  aecovnt  of  the  apaech  in  ganaral, 
does  swear  to  what  is  desersiag  of  attanliesi. 
He  remembers.partof  the  spea^  towaads  .the 
end, "  to  hell  vnth,"  or  "  for.  ailegsance."  .Ha 
said,  the  words,  "if  lie  tamed < aideaf  Mr-^ia 
the  voice  of  his  people,''  wwefallewiBd  bylhe 
«spieesions  I  have  just  cited  about  aUegianee, 
This  as  the  evideace.  of  Meina,  and  you  mall 
consider  wiMther  it  dees  not  coBrobonato. Urn 
special  aecmint  srhich  lir.  Fassiieigises  ctf 
the.  speech  he  bemd  :M<La(en  delivet.  tfiiet 
attempt  waj  made  io  examine  .f  Innie  as  e^ 
the  eitnatioo  where  he  stood,  at  the. 
or  whether  -^se  avas  any  jiosse  or 
ef  hearing. 

The  question  ^as-to  theepaeeh  avtuaUljKidi^ 
livesad  doesnot  seat  here,.beaaB0e  -yen  will 
•find  it  was  admitted  by  M'Laaen  haBisBlf,sta 
his-deahiration  bsfose  the  sheriff,  that  he  dsA 
give  in  a  naaaseaipt  contaamnghis  speaeh  Jia 
the  .oammittee  to  he.pcioled,  aiid.rthBi  the 
prmtedaeconnt^^  iaiieas>ahontwhatahejda4d»> 
naaaaadmi  dmtabore oneaaiia,>;e insfH wil  ia 
said  abaitt'the  middieof  ihe  seaaMi:wage.ns. 
to  ai|egianoe,:whiah  the  derUwn»i:thmhs;he 
dadsatdehseritDithe  naoadsias.  smamsaJ  in 
ihepahiication.*'  Yea  have,  beeidas  thiai^Mtlm 
aeiiwsce .  of  '4aihar .  fwitnasses.  In  paslieulaK,. 
temsonswean,' that  the  apneahms  raad^oecr 
in  *iiM4Bett's  preenoa,  and  that  Mr«  Baacd^ 
•the  other  prisoner,  made  an  aHeraftion  onit:ui 
penial;  Ohat  he  inserted  words,. makingrthe 
speech. oonfotronble  to  the  piinSed  aceonnt  lof 
it  hare  before-  us.  So  that  this  ehroamatanee 
of  the  MS.  having  been  prodnced,  read  over 
-and  levised,  in  .the  presence  of  these  men,  and 
en'  alteration  being  made  by  Baird,  withofSfc 
any  objection,  as  Samson  swears,  having  been 
made  by  M'Laren,.  ahews  that>  M'Laren  ap- 
-proeed.ofohe  akamtk>D,«rat  least  4hat  he  did 
'ttotoppose it;  andthis, withiheothetwviiam:% 
rgoeswto  'Shew  'what'-was^the  tmejsMiitnie  .of 
ithe  spaeeb/deisvemdjuponrthat  eeaasiqn. 

You  have  i  to  cempare .  the  -  paimad  f^mpoiA 
•vittth^  tbaeeei  jiHSOBlsimdiaard  by  EinniatwUch 
eameiavit  of^ihffLaren'ai-  month.  tU  jmvu  thiak 
it  your  duty  ta^ake  the  prinied  etateBMiit  as 
the  true  account  of  what  was  said,"  But  should 


1*7] 


£7  GEORGE  IIL 


Trial <}f  AletaHder  M'haten, 


[138 


he  be  80  infatuated  as  to  turn  a  dekf  ear  to 
their  just  petition,  he  has  forfeited  that  allegi- 
ance; yes,  my  fellow  townsmen,  in  such  a 
case,  to— —with •  their  allegiance;"  you  y^ill 
keep  in  viewj  that  McLaren  gave  in  the 
manuscript  of  his  speech  to  be  printed,  and 
vras  present  when  Baird  inserted  these  words ; 
and  you  will  decide  for  yourselves^  whether 
there  -is  any  doubt  that  he  permitted  that, 
which  he  took  no  steps  to  prevent.  But  again 
if  you  take  into  view  the  words  as  given  by  a 
-respectable  witness,  and  confirmed,  to  a  cer- 
tain extent,  by  another  witness,  and  admitted 
by  the  prisoner  himself  to  Mr.  Johnstone,  yon 
will  consider  whether  there  is  any  rational 
ground,  for. doubt. as  to  the  import  of  the 
passage  of  the  speech  which  M'l^ren  delivered 
■aitng  beieea  sufficiently  established. 

Next,  with  regard  to  Mr.  Baird,  the  case  is 
of  a  different  description  as  to  the  .facts,  for 
lie  is  not  alleged  to  nave  made  any  speech  9X 
all.  The  charge  against  him  is,  that  he .  was 
one  of  those  who  printed  and  published  a 
statement  of  those  proceedings,  containing  not 
<iBly  McLaren's, speech,  but  those  of  others 
^fiiich  are  founded  on  as  being  of  a  seditious 
and  inflammatory  nature..  It  does  appear  in 
«v^deDoe  that  Mr.  Baird  was  at  meetings  of  the 
eonimittee,  bodi  before  and  after  the  public 
meeting ;  and  when  the  decision  was  taken  as 
4»  printing  and  publishing  the  proceedings  he 
was  present.  It  has  no  doubt  been  proved, 
<Mi  ills  part,  that  he  was  one  of  those  whb  did 
oppose  in  the  committee  the  printing  of  the 
|iatsage  in  McLaren's  speech,  but  that  his 
olgection  was  overruled ;  and  had  Mr.  Baird's 
case  rested  here,  and  had  the  public  prosecu- 
tor endeavoured  to  implicate  him  in  the  pub- 
lication, by  his  merely  being  present  at  the 
public  meeting,  it  would  have  been  difficult 
indeed  to  have  persuaded  any  jury  to  have 
found  a  verdict  affainst  him.  But  his  conduct 
was  different ;  for,  after  his  objection  had 
been  overruled,  he  superintended  the  publi- 
cation ;  .and  it  is  folly  proved*  that  he  went 
twice  or  three  times  to  the  printingK>ffice  with 
Mr.  Andrew,  who  was  employed  in  revising 
the  p'roof  sheets,  and  that,  upon  one ,  of  these 
occasions  he  suggested  the  correction  of  i  a 
grammatical  error.  This  evidence  will  pro- 
bably be  sufficient  to  satisfy  you  that  Mr.  Baird 
did  take  a  concern  in  the  printing  and  pub- 
lishing of  what  is  complained  of,  even  after  he 
stated  objections  to  one  passage.  His  con- 
duct, therefore,  at  tliis  penod,  makes. him  re- 
sponsible, even  if  the  evidence .  stopt  there ; 
Imt  has  it  not  also  appeared  in  evidence,  that 
Crawford  holds  him  responsible  for  the  payment 
of  the  printer's  account?  and  were  not  many  co- 
pies of  the  pamphlet  sold  at  his  shop  ?  Mr.  Finnie 
swore  that  Mr.  Baird  got  some  copies  from.him, 
and  expressed  surprise  that  the  witness  had 
not  got  quit  of  all  his  copies.  Mr.  Baird  is  not 
a  bookseller,  but  a  grocer,  and  disposed  of. the 
copies  in  hiflr  shop ;  one  of  which  copies,  it 
has  bean  proVed  was^  thef  ^  bought  by  Htigh 
Wilson.  .     .      -w 


.  Having  stated  to  you  what  appears  to  me  to 
be  the.  result  of  the  eYidence  in  these  particulars 
as  to  the*  facts  of  delivering  and  publishing  the 
speeches  complained  of  in>  this  indictmentj 
there  still  remains  a  much  more  important 
question  for  your  decision,  which  it  is  your 
entire  province  to  decide  on,  but  with  respect 
to  which,  it  b  my  duty  to  submit  a  few  obser-* 
vations  to  you.  You  have  already  had  an  op- 
portunity of  hearing,  that  on  the  face  of  this  in- 
dictment, as  the  matters  are  there  disclosed 
•and  undertaken  to  be  proved,  the  court  con- 
sidered the  charge  relevant,  and  fit  to  be  sub- 
mitted to  a  jury ;  and  now  that,  the  evideoca 
has  been  led,  .and  we  have  the  whole  circum- 
stances investigated,  I  have  no  difficulty  in 
stating,  that  notwithstanding  all  that  I  have 
listened. to  in  the  very  learned,  able,  and  in- 
genious criticisms,  both  on  M'l^ren's  speech 
and  on  the  passages,  of  the  publication  which 
have  been  rounded  on,  I  am  still  of  opinion 
that  there  is  matter  of  a  seditious  description. 
It  wouljl  be.  most  improper,  however,  on  my 
part  to.  hold  out  to  you  that  I  think  this  a  case 
of  sedition  of  a  most  atrocious  or  aggravated 
description.  That  would  be  an  erroneous  im-^ 
pression.  I  have  to  observe,  also,  that  I  am 
far  from  thinking  it  proper,  in  the  case  you  are 
now  trying,  to  refer  to  other  cases  which  are 
notpanUlelto  it  in  the  focts. .  But  in  reference 
to  the  prisoners  at  the  bar,  it  does  appear  to 
me,  ana  to  the  rest  of  the  judges,  to  be  clear, 
that  there  is  on  .the  face  of  the  speech  of 
McLaren,  and  in  the  different  passages  which 
have.been  referred  to,  as  well  as  in  the  context 
of  the  publication,  matter  of  a  seditious  nature. 
How  far  that  seditious  matter  has  existence  ia 
point  of  fact,  or  is  affected  by  the  circumstances 
in  evidence,  or  the  remarks  made  on  it,  you, 
however  are  to  decide.  In  judging  of  this, 
you  are  called  upon  to  look  to  the  intentioQ 
imputed  to  the  parties ;  and  I  concur  with  the 
learned  gentleman  in  thinking,  that  it  is  the 
part  of  the  public  prosecutor  to  establish  the 
criminal  tendency  of  this  alleged  seditious 
publication.  Criminal  intention,  or  Uiat  the 
facts  were  committed  wickedly  and  feloniously 
as  charged,  constitutes  the  very  essence  of  the 
crime.  You  must  be  satisfied,  that  the  pro- 
ceeding was  not  only  seditious  in  itself,  but 
that  there  was  the  criminal  purpose  in  the 
speeches  and  publication  which  is  charged  ia 
the  indictment.  I  do  apprehend,  that  when  a 
jury,  is  called  upon  to  decide  upon  tlie  import 
of  a  speech  or  of  a  publication,  ,it  is  their 
bounden  duty  to  put  upon  that  speech  and 
publication  a  fair  and  even  a  mild  interpre- 
tation. They  are  not  called  upon  to  stretch 
matters,  or  to  endeavour  to  find  out  a  far- 
fetched meaning  in  words.  If  words  are  of 
4m. ambiguous  nature,  the  mildest  construction 
of  them,  is  to  be  adopted;  but,  on  the  other 
^hand,  reason,  requires  that  a  sound,  plain,  hpr 
'nest  meaning  be.  given  to  language. .  It  Is  niot 
disputed  by  the  public  prosecutor  (for  he  him- 
.self,  in  some  me^ui^  followed  such  a  course), 
that  it  »  Qe.osQ^ary  to  Ipok  to  the^  context,^  ami 


H0I 


mud  fhMm  Bmrdjbr  SMOtn^ 


A.  a.  isir. 


[1S» 


BolV>  laitt  Mtf  »  ieBCenoa  of  t  spenb  4it  y«b- 
liealion,  bvi  to  give  fiur  play  to  the  aconsed, 
bf  rofimijBg  to  what  pioccdaf  and  4o  wfaal 
IdHois.  It  ii  yov  Inmness  4o  take  Ihe.docii* 
aeots  into  jour  own  handsy'and  looking  to  the 
wkfi^  coDtcst  to  draar  the  eftochifion  iHiether 
tlpeve  is  aeditioa  er  not. 

It  if  laMy  poiwiWe  al  ftis  late  bow  to  go 
tiiroofb  every  erne  of  Aa  passages  whidi  are 
tended  oA»  Mid  fiu  less  through  the  wbole 
nohlieation ;  Wt  I  beg  leare  to  say,  in  re- 
ivence  fo  the  speech  of  M'lAien,  that  there  do 
sppear  to  ne  a  asost  improper  atyle  end  tone 
inte^boleof  ii.  He  refeit  to  tiansacUoas 
si  »  wmj  distaol  period,  of  whioh  no  sober- 
SSinrded  n^n  ironld  wish  to  revire  or  obtwde 
ft^  recoUestiae,  as  affording  any  nde  of  eon- 
duet  fisr  the  people  of  this  country^  in  reference 
|o  their  piesootsiiyition.  From  th^  beginning 
^f  the  speechy  in  vpbich  complaints  axe  made 
of  the  oppressions  under  which  the  country  iM 
iabo^iingy  to  the  conclusion,  in  which  reference 
is  nade  to  the  Pdnce  B«geat,  there  is  a  ce- 
mr^  style  of  inflammatory  dedamation.  Nor 
was  this  effusion  unpremeditated,  for  notes  of 
fhe  speech  were  inepared  by  .him  at  an  earlier 
or  later  penod  oewire  the  meeting.  Without 
going  into  particulars,  Im  there  is  a  lone  and 
tagwsge  in  this  speech  which  are  strongly  in* 
IbMnm^tCiy,  and  tending  to  eidte  in  the  people 
disconrgtf  and  disaffection  agiinst  4ie  gwexn* 
pnau  md  legjMatnie.  tX  this  it  is,  however, 
Youjr  iMtovittce  to  judge.  I  have  no  difficulty 
91  saying  that  liie  lai^guage  appears  .to  me  not 
to  be  of  a  desenption  whsch  can  be  ssfionciled 
10  the  single  oloect  of  petitioning. 

The  passage  uppa  woich  the  most  ipipoetant 
oomnsents.  hiore  teen  made  is  thai  with  regard 
to  tho  petition  to  Ihe  Pkince  Begent,  end  the 
Mseqjaenos  of  his  not  Ustoning.to  the  just  pe-^ 
titioiBs  ol  the  people.  The  passage  is  in  these 
epofde :  ^Lat  us  lay  .our  petitions  at  the  foot 
of  the  throne*  where  sits  oor  angust  prince, 
jvhoio  gfaoions  natooe  snli  incline  his  eir  to 
liaten  tp  die  cries  of  bis  j>eople,  vfiuoh  he  is 
iMomad  to  .do  by  the  laws  of  the  oountry :  But, 
ebooldhe  besoinfatuatedastotom  a  deaf  ear  to 
fbAr  just  petitiqp»  he  has  fosf^ited  their  alio* 
^ance.  Yes,  «j  ieUow-townsmen,  in  ^uch  a 
case,  to  hell  wijth.oor  -aUegiance."  Take  the 
cxpnessions  as  given  either  in  the  pahlication, 
er  as  in  ari^eace  by  4he  witnesses,  and  say 
is  yonr  oplnicn  as  fo  this  part  of  the 


A  great  deal  of  most  able  and  ingenious 
criticism  lias  been  bestowed  upon  this  passage, 
fmd  mA  it  :the  oeoastol  for  the  panel  giappied 
to  abettttmoat,  pcsceiving  at  of  v^al  iippoitaaoe 
ee4»eia*eiestofhis€li«Dt.  '  He jvas  bordering 
«pon  wmf  diiieafir  gronnd,  indeed,  in  ihe  de- 
mice  fdach  hsimainlaiiied.  But,  after  all  yen 
fcsraie  boad^on  thesnlQeot,  yon  eie  to  oonsider, 
^ihethtf,  nQtorithstanding  she  forouiable  »- 
marira  maile  in  jnlssia  re  ito  ahe  Priaee  Eqpsnt, 
wawifk  1.  adapt  doapyaar  in  Aei^wt  partjofthe 
wsafa  ipqneetiwi,.the  langua^m  the fol- 
bw^Mioe  instifiablai^  u  Mmpfxefoaence 


to  the  fAtitioas  of  dhtf  people  at  laige,  or  to  the 
petition  of  these  particnlar  pecsoas.  Tbe-term^- 
jnst  petition,  no  doubt,  is  employed.  Baft 
who  M  to  judge  of  the  justice  ot  the  petition  1 
It  would  appear  from  all  that  passed  that  tho 
petitioners  tnemselves  were  the  judges.  Whalf 
was  said  to  be  the  alternative  u  this  petition* 
:#as  refused  ?—<"  To  hell  with  aUegiance,"  or  ' 
**  our  allegiance.^  I  aak  of  you,  as  sensible  and 
reasoaable  men,  whether  this  language  does- 
liot  indicate  that  the  Speaker  had  tomtd  a 
purpose  of  throwing  off  bis  allegiance,  in  the 
event  contemplated  of  a  rejection  of  the  per 
titions  in  question  f  He  was  to  arnur  himself 
against  fais  sovereiga,  not  in  the  ludioroiie' 
manner  that  Mr.  JdFrey  suggested,  but  in  a 
venr  different  and  much  more' serious  manner; 
and  I  boldly  affirm,  that  if  a  single  step  had 
been  taken,  by  following  up  the  language  ibim- 
employed  by  any  overt  act,  it  would  not  liaife 
been  sedition,  but  plain  and  palpsifaie  treaao& 
Whether  the  languafps  thai  was  here  usei^ 
which.  It  has  been  said,  only  ^presses  a  Tesy 
delicate  principle  in  the  ceostitutional  law  cif 
this  country,  was  calculated  to  excite  discon^ 
tent,  disunion,  and  public  disturbance,  is  Ihe 
question  for  jFonr  deeision.  You  vrill  judge 
whether  the  words  were  uttered ;  ]rou  will  jpva 
them  fair  pli^  in  judging  of  their  meaainff*; 
and  in  the  interpretation  df  them  you  will  senr 
io  the  other  parts  of  the  speech.  Inthatvfay, 
yoa  will  satefy  your  minds  as  to  the  grouads  of 
the  canclosion  you  a&ay  come  to,  and  decide  se 
to  the  intention  of  the  speaker,  and  ihe  import 
of  the  passage. 

Yon  will  judae^  else,  of  the  meaning  of  the 
term  **  Gti^mchyf"  which  oocuri  in  the^peecb, 
and  in  different  parts  of  this  publication :  yoa 
will  consider' whether  it  alluaes  to  any  of  the 
brandies  of  the  legislature,  or  must  be  limited 
to  the  persons  forming  the  actual  administr»* 
tioo.  I  coincide  with  the  opinion  which  was 
lifted  at  bymybrodier  on  my  right-hand ^ 
partieularly  vrhea  I  oonsider  the  way  and 
■lanner  in  vfhich  4he  term  is  explained  by 
another  speech  founded  on  in  the  mdiotmenl. 
^*  We  have  these  twenty-Ave  yeats  been  oo»- 
demned  to  incessant  and  unparalleled  slavery 
by  a  usurped  Oligarbhy,  who  pretend  to  be  oar 
guardians  and  repvesenutives,  while,  in  foot, 
they  are  nothing  nut  our  inflesible  end  detei^ 
mined  enemies.'*  I  think  it  is  impossible,  by 
any  interpretation,  to  suppose  that  this  has  re- 
ierenee  to  ministen.  It  obviously  has  ^eio- 
rence  to  the  House  of  Commons,  one  of  the 
branches  of  the  legislature.  When  they  com- 
platn  of  the  oppression  under  which  the  ooaa 
tiy  labours,  Ib^  have  reference  to  the  Com^ 
moas  House  of'  Parliament.  I  think  the  same 
iatespretation  is  applicable  to  M'Laren^s 
apeecb.  You  are  to  consider,  then,  whether 
the  House  of  Commons,  as  now  constituted,  is 
meant  to  be  designated  by  the  ^  usuiped  Oli- 
aardiy,  who  pretend  to  be  oar  guardians  and 
Wpiesentatiyes,  while  in  fact,  they  are  nothing 


-5--* 


•  Le^aestoar«id»p.  W. 


ISlJ       ^7  GGORGlB  in. 


Trial  qfAi$mm(ler  M^LofW 


CHS 


but  our  ioflezibte  and  .determined  enemies^" 
nlid  who  have  these  twenty-five  years  con- 
demned the  country  to  incessant  and  unpa- 
ralleled slavery;  and  you  are  to  determine, 
whether  9  by  propagating  such  opinions  in  a 
speech  to  an  assemblage  of  4000  persons,  and 
afterwards  introducing  them  in  a  pamphlet 
which  was  sold  and  circulated  in  the  country, 
the  paneb  were  not  guilty  of  sedition.  1 
tubmit  to  you,  that  if  there  is  any  meaning  in 
words,  this  was  degrading  the  House  of  Com* 
motts^— casting  on  them  the  imputation  of 
having  enslaved-  the  country  for  the  twenty- 
five  preceding  years,  and  attributing  to  them 
all  the  misery  which  the  coufttiy  is  represented 
as  suffering. 

:  There  is  another  passage  in  the  publication 
to  which  I  think  it  necessary  to  call  your  at- 
tention. I  mean  that  general  statement  which 
.'which  was  made  as  to  the  proceedings  which 
iook  place  in  the  year  1793.  You  wiU  find  the 
passage  in  page  2,  of  the  indictment.  *'  But 
let  lis  come  nearer  home.  Look  at  the  year 
1703,  when  the  debt  amounted  to  two  hundred 
«nd  eleven  ipillions,  and  the  annual  taxation 
io  about  eighteen  millions ;  when  liberty  began 
4o  rear  her  drooping  head  in  the  country; 
when  associations  were  framed  from  one  end 
.of  the  kingdom  to  another,  composed  of  men 
eminent  for  their  talents  and  virtue,  to  assert 
ibeir  rights;  when  a  neighbouring  nation  had 

i'ust  thrown  off  a  yoke  wluch  had  become  into- 
erable,.— what  did  the  wise  rulers  of  this 
jcountry  do?  Why,  tiiey  declared  war,  not 
only  against  the  French  nation,  but  also  against 
«he  fiiends  of  liberty  at  home."  It  has  been 
;urgued,  that  the  term,  **  wise  rulers,"  means 
the  ministers  for  the  time,  and  that  their  con- 
•duct  may  be  discussed  without  blame.  I  con- 
jcnr  in  the  observation,  that  there  is  no  sedition 
in  the  oensure  of  administration  merely  as 
iservants  of  the  crown*  But  the  passage  clearly 
applies,  not  only  to  the  government  of  the  day, 
Imt  to  the  mtem  of  govemment,^ — to  the  legis- 
lature'itself  How  can  that  be  doubted,  when 
.you  observe  the  concluding  words:  "Why, 
4hey  declared  war  not  only  against  the 
French  nation,  but  also  against  the  friends 

'  of  liberty  at  home.'*  Look;  also,  at  the  context. 
.The  clear  import  of  it  is,  that  when  the  coun- 
try was  in  the  awful  situation  described  by  the 
learned  counsel,  the  government  declared  war 
4kgainst  the  liberties  of  the  country.  What 
4ook  place  at  that  time  is  matter  of  notoriety. 
,New  measures  were  then  necessarily  resorted 
.10  for  the  salvation  of  this  country  against  the 
attacks  of  foreign  and  domestic  foes.  King, 
.Lords  and  Commons,  united  for  the  purpose  of 
'Securing  the  liberties  of  the  country,  and  their 
measures  are  here  manifestly  represented  under 
these  words:  /* They de<;^red  war  not  only 
.against  the  French  nation,  but  also  against  the 
•friends  of  liberty  at  hpme.?    You  will  say,  in 

^  point  of  fact,  whether  t]^e  fainistry  or  Ui)9.  whole 
legislature  .were  referred  to  in  this  passage,  and 
whether  to  cirealate  it  was  not  to  psopagate 

^    sedition  tbrau^ottt  the  Miatiyt  . 


-  Th0re  are  other  passages,  faflio  the  ooiiBtda». 
tion  of  which  I  cannot  now  enter.  I  shall 
just  refer  to  one  which  has  been  commented 
on  at  great  length.  The  passage  is,  *'  And  a 
House  of  Commons;  but  the  latter  is  cofw 
rupted ;  it  is  decayed  and  worn  out ;  it  is  not 
really  what  it  is  called, — ^it  is  not  a  House  of 
Commons,"  &c.  It  is  said  that  there  has  been 
language  used  in  parliament,  and  passages  in 
petitions  presented  to  parliament,  stronger  and 
more  offensive  in  their  nature,  than  thi« 
founded  on  by  the  public  prosecutor ;  and  thai 
such  petitions  were  received  and  hod  upon  the 
table  of  the  House  of  Commons.  Passages 
were  read  to  you  to  prove  this.  Upon  Uiis 
part  of  the  subject  I  must  observe,  that  what 
IS,  or  is  not,  tolerated  by  the  Houses  of  Par- 
liament, must  be  foreign  to  our  present  discus- 
sion. They  are  the  best  judges  of  what  is 
a  violation  of  their  privileges ;  but  this  much  i 
state  to  you,  that  if  seditious  language  be  used 
out  of  doors  by  persons  in  preparing  a  petition 
for  parliament,  even  if  that  petition  should 
embody  the  seditious  words  themselves,  it 
cannot  be  pleaded  against  a  charge  of  sedition 
that  the  petition  has  been  received  by  parlia- 
ment. We  are  bound  to  judge  of  the  language 
employed  by  the  .test  of  law  aiyd  common 
sense,  and  by  that  test  to  determine  wbetjier 
it  is  seditious  or  not.  It  has '  been  held,  again 
and  again,  to  be  no  justification,  in  a  charge 
of  sedition,  that  language  even  of  a  more 
seditious  tendency  had  been  used  in  or  out  of 
parliament  without  being  followed  by  any 
punishment — ^It  is  stated  for  these  paneliB,  that 
stronger  language  has  been  used  in«.  other 

anarters ;  but  the  answer  is,  that  is  nothing  to 
le  question  under  consideration.  If  the 
language  here  be  seditious,  iV  is  no  matter 
whether  such  abuses  have  been  passed  over  on 
other  occasions.  If  such  petitions  as  thoee 
referred  to  had  been  particularly  brought  under 
the  view  of  the  House  of  Commons,  I  shouki 
think  they  must  have  been  rejected;  and  it 
would,  be  matter  of  astonishment  to  roe,  indeed, 
if  petitions  couched  in  language  far  short  of 
what  is  now  before  us  were  received.  •  But  in 
the  multiplicity'of  petitions  presented  to  that 
House,  some  may  pass  without  due  attention. 
Perlmps  very  objectionable  petitions  do  lie 
there.  But  if  the  public  prosecutor  proves  in 
this  Court  the  utterance  and  publicatien  of 
seditious  language,  it  is  of  no  consequence 
that  petition^  containing  such  language  have 
even  been  received  unchallenged  by  the  House 
of  Commons. 

There  is  a  part  of  the  defence,  however, 
deserving  of  your  serious  attention.  It  was 
abl^  argued  by  Mr.  Clerk,  that  the  language 
which  is  here  complained  of,  havipg  been  used 
in  connection  with  the  exercise  of  the  legal 
right  of  petitioning  the  lerislature,  cannot  be 
considered  as  seditious.  Uod  forbid  that  any 
thing  should  be  said  by  me  hostile  to  the  right 
of  petitioning  the 'House  of  Commons,  the 
House  o£  Lords,. or  the' Sovereign,  if  the  peo- 
ple are  ceqiectfulin  their  language;  for  to 


133] 


mi  1%»fhm  BtMJof  MMte. 


A.  O.  1817. 


1134 


lUte  grier^Boes,  aad  apply  fbr  ledrtft,  is  the 
uodoobled  aad  miafieiiable  rigbt  of  the  salgects 
of  this  realm.    Bat  I  have  no  difficulty  in 
sayniff,  that  i^  under  the  pretence  of  petition* 
ing^,  laogiiage  of  a  seditious  nature  oe  used, 
those  using  or  publishing  it  must  answer  fbr 
the  conseauences.     The   sacredness  of   the 
right  which  is  to  be  canied  into  effect,  will 
not  sanction  the  use  of  unlawful  means  in  the 
accomplishment  of  it;  and  those  who  come 
forwara  upon  such   occasions   must  abstain 
fWmi  inflammatory,  seditious,  or  treasonable 
expressions.    It  would  be  a  gross  abuse  of 
tite  inviolable  right  of  petitioning,  if  it  afforded 
an  opp6rtunity  for  every  kind  of  language 
being  uttered,  however  improper  or  reprehen- 
sible.   Such  never  can  be  the  result  of  what 
ii  due  to  the  sacred  right  of  petitioning;  and 
therefore  the  learned  gentleman  admitted  that 
he  did  not  cany  his  argument  so  &r  as  to  say, 
that  a  petition  mav  sanction  anv  thing  of  an 
improper  nature ;  but  he  argued,  that  if  you 
be  satisfied  that  die  object  was,  to  petition  the 
legislature,  you  will  be  disposed  to  make  due 
alfowance  for  the  language  which  may  be  used 
lb  caning  attention  to  grievances.    To  this 
extent  the  observation  is  well  founded.    His 
good  sense  must  have  made  him  perceive  that 
both  the   law  and  constitution  would  sink 
under  any  other  doctrine.    That  is  the  test  to 
which  you  are  to  bring  the  matter  now  under 
your  consideration.    You  are  to  look  to' the 
whole  fttcts  and  whold  publication ;  and  you 
win  judge  whether,  when  the  people  assembled 
to  prepare  this  petition,  there  was  or  was  not 
a  biameable  excess  in  the  language  employed 
by  them,  and  whether  this  was  not  greatly 
ag|;ravated  by  the  proceedings  of  the  meeting 
"being  embodied  in  a  publication,  and  circu- 
lated over  the  country.      I  have  no  wish, 
sentlemen,  to  press  this  case  further  tiian  the 
mcts  appear  to  warrant.    It  is  your  bounden 
dntr  to  weigh  all  those  expressions  which  are 
ftirly  admitted  to  be  too  strong,  and  even 
jndeeent;   and  it  ik*  jour  province  to  say, 
wiiether  these  expressions  do  amount  to  sedi- 
tion, have  a  tenaency  to  bring  into  contempt 
tfie  government  and  legislature,  and  to  stir 
«p  the  people  to  disaffection  and  reheHion. 

I  (certainly  do  most  sincerely  lament  that 
«ar  attention  has  been  caUed  to  tliis  case. 
This  is  the  first  trial  for  sedition  that  has 
occurred  for  a  considerable  length  of  time; 
aid  1  can  assure  the  learned  ffenttemen  that  I 
had  fondly  flattered  myself,  that  even  at  my 
rime  of  hfe  I  should  not  have .  again  had 
occasion  to  apply  my  mind  to  the  study  of  this 
part  of  the  law.  I  hoped  and  trusted,  tiiat 
after  the  dear  exposition  of  the  law  in  1793, 
1794,  and  1795,  in  the  different  prosecutions 
wha^  were  then  found  necessary,  sanctioned 
smd  approved  of  by  the  unanimous  voice  of 
Jfae  .country,  I  should  not  have  been  obliged 
tb  consider  cases  of  this  description.  But 
no  it  is,  tibat  although  the  situation  of  this 
oonntiyis  so  highlT  prosperous  and  enviable 
t^ben  cMiq«r«d  with  the  rest  of  Euiope,  it  is 


in  Britaita  in  18t7  that  we  live  eidtod  on  to 
consider  such,  cases.  An  allusion  was  made 
to  the  state  of  the  country  at  the  former  period, 
as  accounting  for,  and  justifying  the  prosecu* 
rions  which  then  took  place,  as  well  as  their 
result.  But  the  learned  counsel  was  afterwards 
under  a  necessity  of  alluding,  also,  to  what  has 
recently  happened  throughout  the  empire  at 
large.  *  Extraordinary  and  strong  measures 
have  been  adopted,  and  the  enactment  of  neir 
laws  has  been  rendered  necessary  by  the  state  of 
the  times.  But  you  are  not  to  be  affected  by 
such  considerations,  and  I  would  not  even 
have  alluded  to  them  had  they  not  been  al- 
luded to  by  the  counsel.  You  must  lay  aU 
considerations  of  this  kind  out  of  yonr  view  { 
and,  considering  this  indictment  as  brought 
by  his  majesty's  advocate  in  the  discharge  of 
his  duty,  you  are  to  determine  on  the  facts^ 
and  say  whether  the  panels  are  guilty  or  not 
of  sedition. 

I  resret  extremely,  in  a  different  point  of 
view,  that  this  should  be  the  first  case  brought 
before  this  Court,  and  from  a  county  with 
which  I  am  connected  by  so  many  ties.  It 
apoears  to  me  that  both  of  the  prisoners 
haa  been  men  of  exemplary  conduct  and 
ffood  character.  According  to  the  evidence, 
Sf'Laren's  private  character  had  been  veiy 
respectable.  Nothing  but  what  was  right  had 
ever  been  observed  in  his  conduct.  He  had 
never  demonstrated  any  thing  like  a  disposition 
to  tumult  or  disturbance,  but  was  a  volunteer, 
and  had  served  as  such  with  reputation.  The 
testimony  to  his  seneral  character  well  de- 
serves your  consideration,  in  judging  of  the 
criminal  intentions  of  the  parties,  and  deciding 
whether  their  purposes  were  seditious.  With 
regard  to  Mr.  Baird,  again,  you  will  concur 
with  me  in  deeply  lamenting  the  exhibition  of 
this  charge  against  him,  atandiuf;  as  he  has 
done  in  so  fair  a  situation  in  society.  Many 
of  the  witnesses,  even  for  the  crown,  have 
given  him  a  high  diaracter.  The  inhabitants 
of  Kilmarnock  had  some  time  ago  appointed 
him  one  of  their  police  commissioners,  thus 
showing  their  good  opinion  of  him.  It  ap- 
pears, Uiat  he  was  a  man  of  respectable  moial 
character,  and,  in  the  opinion  or  the  witnesses, 
attached  to  the  eovernment  and  to  the  con- 
stitution, though  he  had  a  strong  opinion  of 
the  propriety  and^necessity  of  a  reform  in  pai^ 
liament.  It  has  been  strongly  affirmed  for 
him,  that  he  never  had  any  thing  further  in 
contemplation  upon  this  or  any  other  occasion. 
With  regard  to  both  the  prisoners,  they  were 
not  known  to  have  been  ever  connected  with 
any  other  political  societies. 

These  are  points  important  for  your  con- 
sideration in  judging  of  the  essential  question 
which  you  are  to  determine  as  to  the  guilt  of 
the  pristaers.  If,  upon  a  careful  consideratibn 
of  the  whole  facts  in  tlie  publication,  and  the 
evidence  which  has  been  adduced,  you  shall 
b6  of  opinion  that  no  sedition  or  seditious 
intention  has  been  proved  against  the  prisoners, 
you  wiU  find  by  your  verdict  .that  th^  are  Jiot 


ld<i       57  GEORGE  III. 

guilty  of  the  ehmge.  If,  Ob  die  otter  faindy 
YOU  are  of  opinion  that  these  ib  seditious  matter 
in  the  speech  and  publication,  and  that  the 
^arge  or  criminal  intention  imputed  to  them 
in  the  indictment  has  not  been  done  away  by 
the  general  conduct  of  the  prisoners,  you  will 
not,  I  am  confident,  shrink  from  your  duty, 
but  will  find  them  guilty  of  the  crime  of  sedi- 
jdon  libelled  in  the  indictment.  And,  if  you 
Ihink  that  the  scales  hang  doubtful,  and  that  it 
U  difficult  to  say  whether  the  prisoners  were 
guilty  or  not,  the  former  good  character  and 
conduct  of  these  men  are  entitled  to  fuTouiable 
consideration.  I  leaye  the  case  in  your  hands, 
being  co'Ufident  that  you  hare  paid  most  par- 
ticulaar  attention  to  all  that  has  passed,  and 
can  bare  no  object  in  tiew  but  to  return  a 
eonsdentiOtts  verdict.  Whatever  you  may  do, 
I  trust  your  Yerdict  will  be  satisfactoir  to  your 
4wn  minds,  and  equally. so  to  die  public. 


Wrmt  qfJk/Mmim  M^^mm 


I 


J^itU  7th,  1817. 

Lord  Jtutice  Clerk. — Gentlemen  of  the  jury^ 
who  is  your  chancellor  ? 

Jwy, — ^Mr.  M'Kinlay. 

[Mr*  M'Kinlay  ga?e  the  verdict  into  court.J 

Lord  JvUiee  derft. — Alexander  McLaren 
and  Thomas  Baird,  attend  to  the  verdict  of 
the  juiy  on  your  case. 

*  At  EdMurgh,  the  6th  of  April,  IBiTyeart. 
The  above  assize  ha?ing  inclosed,  made 
choice  of  the  said  Archibald  Mackinlay 
to  be  their  chancellor,  and  of  the  said 
John  Baxter  to  be  their  clerk ;  and  haring 
considered  the  criminal  Indictment,  raised 
at  the  instance  of  his  majesty's  advocate 
for  his  majesty's  interest  against  Alex- 
,  ander  McLaren  and  Thomas  Baird,  panels, 
the  interlocutor  of  relevancy  pronounced 
thereon  by  the  Court,  the  evidence  ad- 
duced in  proof  of  the  indictment,  and  the 
e?idence  adduced  in  exculpation,  they, 

Sa  plurality  of  voices,  find  Alexander 
lAren  guilty  of  the  crimes  libelled  in 
the  indictment;  and  Thomas  Baird,  ail 
in  one  voice  find  him  guilty  of  the  crimes 
libelled  in  the  indictment.  But,  in  con- 
sideration of  their  former  good  character, 
unanimously  recommend  them  both  to 
*  die  clemency  of  the  Court.  In  witness 
whereof,  their  Said  chancellor  and  clerk 
have  subscribed  these  presents,  consist- 
ing  of  this  and  the  preceding  two  pages, 
'  in  their  names  and  by  their  appointment, 
place  and  date  aforesaid. 

(Signed)    A.  Mackivlay,  chancellor. 
J.  Baxteb,  clerk. 


Juitke  Gfar^— OendeiAenof  the  jury, 
you  are  now  disdiarged  from  the  very  fiitiguing 
and  painful  dunr  irhich  you  have  hud  to  per- 
form ;  and  I  feel  it  incuBbent'on  me  to  state 
to  you,  that  the  verdict  which  yon  have  f^ 
tioMd^  it^  in  iu  geacnd  nealt,  such  ai  I  was 


10  expect  vcni  a  iuiy,oi  yuUrivspcciaoBii^^ 
after  the  unwearied  attention  you  have  be* 
stowed  upon  the  whole  of  the  trial.  I  am 
confident  that  this  verdict,  while  it  is  satia* 
fiictory  to  your  own  minds,  will  be  of  gceai 
service  to  vour  country ;  and  I  have  only  to 
add,  that  the  recommendation  with  which  jwi 
have  accompanied  the  verdict,  and  whiel^ 
under  all  the  circumstanoes  of  the  case,  is  ao 
proper,  .will  aieet  from  the  X3ourt  with  all  tha 
attention  it  deserves. 

Lord  A&focate, — It  jonly  tooains  for  me  how 
to  crave  the  judgment  of  the  Courf . 


Lord  Jmtke  Gferi:.— Have  the  counsel 
the  prisoners  any  thing  to  say  on  this  verdict  f 

Mr.  Jeffrey. — In  stating  to  your  lordships 
in  one  or  two  wOrds^  what  has  occurred  to  us 
on  the  verdict,  I  hope  I  am  not  doing  more 
ihan  my  duty.  It  appears  to  us,  that  though 
its  general  meaning  is  impossible  to  be  mis- 
taken, there  is  an  inaccuracy  in  one  point, 
which  is  worthy  of  consideration.  Botn  the 
prisoners  fue  charged  with  iedUion  and  wUk  ne 
other  erimef  and  the  verdict  has  found  them 
both  guihy  of  the  erima  libelled,  usi^g  the 
plural  and  not  the  singular  number.  There 
may  be  many  facts  charged  in  the  minor  pro* 
position  of  the  indictment,  but  there  is  only 
one  crime  charged  in  the  major  proposition  ii^ 
this  case ;  and  you  are  aware  that  the  verdict 
is  an  answer  to  the  major,  and  not  to  the 
minor  proposition.  Logical  accuracv  is  alwaya 
requirM  on  these  occasions,  and  this,  there-: 
fore,  is  not  a  verdict  on  which  the  Court 
should  proceed  to  inflict  punishment.  There 
is  only  one  crime  charged  in  the  major  propo^ 
sition,  and  the  minor  contains  different  acta 
libelled  on  in  proof  of  the  crime  stated  in  the. 
major  proposition,  and  yet  the  verdict  finda 
the  panels  guilty  of  the  crimen  libelled  on.  I 
am  now  arguing  to  a  court  of  law,  and  not  to 
a  court  of  equity.    The  verdict,  in  finding  the 

S-isoners  guiltv  of  the  crknet  libelled,  has  found, 
em  guilty  of  something  not  charged  against 
them. 

There  is  another  circumstance  which  it  is. 
my  dtttv  to  mention,  that  this  verdict  appearal 
to  be  dated  on  Sunday.  I  believe  this  ob- 
jection has  occurred  in  other  cases,  but  haa. 
never  hitherto  been  seriously  argued. 

Lord  Jmtice  Clerk.-^Mr.  Jeflfrey  is  only 
dotiig  his  duty  in  stating  any  objections  that 
occurred  to  him.  But  I  apprehend  there  is 
nothing  in  the  objections  which  have  been 
ofiered.  The  mere  slip  of  a  letter  cannot  be. 
considered  as  a  substantial  objection  in  this' 
case.  Uttpo  crimee  had  been  charged  indie 
major  nropoeition,  and  the  ve'Mict  had  oaW 
found  die  prisoners  euilly  of  die  enme  libelled, 
it  might  have  been  difficult  to  say  which  bf  the 
crimes  was  meant.  But  here  thcfre  can  be  no 
doubt  of  the  meaning  of  the  verdicL 

Lord  E^rmnd.^1  temefnfanr  in  i  fHii  fli 
Ayr,  of  fNW  I«\f»ri9»  o*  a  «M^  « j(MMM 


Mtl 


■■rf  Tl  IiimW  flii'iU  Jill  fclBTiiii 


A.  D.  in7« 


Ciat 


^*^4ia*^**^'^ 


^tsdiei  WW  Toidy  as  bwiM  moottun^  wk  toaat 
thtt  dK  jMfir  mw  ihooli  beiitSicted.  LmA 
Clerk  Miller  adcuiited  the  latt^  altera 
aari  hnpcaed  an  tMttnf  puaishm^nt. 
A  riMflarawtnaitanre  oeqmeA  ai  acpiesticHi 
Mte«  the  Govt  of  Admixalty^  abcmt  a  wreok 
.aii  tta  oaast  ov  OiluKy. 
-  la  Aia  cave  Ihe  word  cfiniatis  ikot  iiBfpit>pcif * 
§Mim  k  the  general  diaraet^  of  the  cliche; 
tat  thete  are  two  apecieB  4if  tedition  UboUod^ 
.one  tiie  makiaif  a  lywoh,  aaotlMBr  the  ^Uiih^ 
jagabook. 


liOfd  filnaaadr— I  ooBcar  in  Ae  observetioai 
^wki^  yoar  toiMap  addreoied  to  the  J^.  I 
Ibiak  this  joiy  dOMrvea  tiie  thtuks  of  tite 
Court ;  and,  wku  is  mora,  tke  Aanks  of  Ike 
ipoanCiy.  I  think  they  deseire  the  thanks  of 
anofher  ciaas  of  men^  of  whom  I  know  little 
^t  hj  report — of  those  who  are  coaaidering 
j^ow  rax  they  msnr  go  in  opposition  to  the  con- 
adintlon  with  safety  to  their  lives. 

It  was  said  by  ooansel,  that  the  present  was 

hn  from  bein^  an  aggravated  speaes  of  sedi^ 

^on.  _  I  like  it  the  better  for  that.    It  is  more 

4gTeea!Ue  to  my  feelin^ps — to  the  feelings  of 

every  jnry,  and  of  every  iudge— to  have  mere 

moderate  crimes  to  try^  man  to  be  obliged  to 

•jofiict  transportation,  or  death. 

'   f  am  the  more  impressed  with  a  sense  of  the 

jnerits  of  this  verdict,  that  when  in  ffroping 

4apf  way  about  11  o'clock  a^  night,  in  ue  dark 

•treeta  of  this  city,  and  leflectmg  with  myself 

wbat  verdict  I  iftkonld  have  given,  had  I  been 

m  jnrfBian  in  this  case,  sncb  was  die  ^fklti  of 

a  bfaoe  <Mf  ekMfnenee,  ibat  I  eanaei  say  wlielhe# 

I  wooild  bate  said  yes  ortto,  if  I  had  been  at 

fbsft  t&ne  bbfiged  to  give  iSi  efpAnlOiii  whethef 

^er  not  the  jpfisbn^n  were  gtiilt)r«    Ltfee  iM 

j«i7 1  diooldfairfe  wished  to  h*ve  betts inolosed 

§tst  oonsideraiion.    But,  lyrrtet  beMin^  It^ 

jtty  doMbt  dteafypeariBd,  and  I  came  to  lh« 

eipmoa,  that  the  reletraney  sC  the  bidi^Mient 

as  deaf  aM  the  fbcfs  completely  pNfred. 

%mff  wortl--HSvef7  kttef  of  this  indiotmetit 

18  now  been  ftu^  proved,  fftie  JeYy  hh^' 
fiwnd  It  iMived,  thiit  afltei^  siifeal^ite  of  the 
B^ctel  with  d«e  iespeet'(Wli«aeir  s«Holilly  m 
atft  I  do'ndi  know),  they  |049n  toeftt^  '« BM 
MMbld  he  be  so  inlhtaated  m  to  tiM  a  tfcMf 
iiar  to  tfaeir  j«M  pedtiMu  h«  \M  IMriMd'AMir 
allegiance;  yes,  my  fellow-countljMte^  iri 
.flMlbacasey  Ift As0 kptf4 oii^ ettjj^dMee.*' 

It  is  net  the  lime  new  to  iii^tolfe  ki(»  iM 
jCfMcnee  $  thou|^,  wave  that  OMttj^feM,  I 
Awdd  be  lAcahr  thit  MA  «#y  eij^hMm  U 
ntoved  aoafayt  the  pMets.  AMI  it  hai  tiM 
tmfpMsi,  iieoftett  o^kusm^  thni  Oiei  8fibii|^ 
#lititnuiiafceei  ee*ie  otftHi  tte^^HMide  ^IR^ 
JOtitOtrndtf  iHtnMte.  Wftkt  I  'afittde  io  f#, 
llte4epOiitiiAibf  finrv^  Who  tetl  th«%  Wis 
a  ¥Me  fM  in  Ihe  OMnMM  wkhf  ^ilHM  ^ 
fifiMlf  tte  «b6^)i8Safl^ ;  ttiif  tome  eifecM^ 
tofit  HiirijIfAflMs  ilni  «ra!<  tffitililer  mi  II 

■m  le  »rtiiii>t  iM  ffti^  iMt4M  m^ 


MrtefsboaUHilbegvbM.    Istet  iiatrirH^ 
Aence  that  theee  were  tlsB  wmds  atiered  m  the 

ridi  f  B«t  tt  is  nnnecessaiy  to  gs  ihsongll 
endentoi  It  sppeaia  to  me^  thnt  it  wai 
not  the  ainistars  or  the  dnr,  bnt  the  oonMta^ 
tiott  tet  Was  attacked.  Bnt  I  «m1  not  gO 
buo  thetb  All  that  Remains  for  as  is»  to  eon** 
sider  tiie  amonat  of  the  punisknent  to  be  il» 
tteted  eA  the  prisonen. 

The  milder  the  pnnislwnent  enn  be  made,  if 
it  be  inch  ai  mey  deter  ethers  from  cotnmildng 
the  like  crimes  in  time  ooSding^  thht  is  thi 
pnnishnient  that  will  aaeet  ssy  wish  and  that 
of  yonr  lordshipi.  This  eate  is  different  tosi 
those  tried  in  1703  and  1794.  I  looked  inte 
them  last  night.  They  are  ektieintlty  diftrent 
from  the  pf^ent  case.  Ibere  the  pnaishmeut 
twatded  trm  tfansport«ion«  NoHe  of  yo«t 
lotdshipscnn  hoof  opinion  wo  oan  here  gn 
that  lengthy  and>  eonsideiriag  Ae  reooea* 
teendation  of  the  jurjr,  I  think  w^  shall  ssdistr 
•at  own  oooseieae^  and  the  Jnstlte  of  tbe  easoi 
by  inilitting  sit  months'  jniprisonriient  o*  iM 
paAelft.  At  the  same  tm^  tiiey  sheuM  b6 
obliged  to  ted  secarity  to  ke«p  ^e  peaoO  fo# 
the  period  of  tlnree  yeais^  Mr.  Bsird,  n^ 
appears  to  be  k  man  of  opulence^  under  thd 
penalty  of  tO(R.,  and  the  other  nnder  that  Of 
401^^  wMcih  I  Aink  is  not  vAieasiiinaMe. 

lord  6dlMs.^^fiothof  the  apfortanatejnanels 
at  the  bar  stand  accused  of  sedition.  Of  that 
crime,  after  a  long  trial,  conducted  with  inft< 
nite  ability  on  bou  sides,  the  unhappy  persona 
hav6  been  found  guilty  by  a  jurjr.  Under 
tibese  circumstances,  nothina  remains  for  us 
but  to  give  effect  to  the  verdict  by  indicting 
sooh  punishment  as  it  appeaii  to  us  thek  cam 
deserves.  Taking  atl  the  circumstances  into 
consideration,  aiM  among  otheft  the  reoom^ 
mendation  of  the  jury,  t  concur  in  opinion  aa 
to  the  punishment  which  has  been  proposed-^ 
that  thoF  should  be  impritoned  lior  six  monthsg^ 
and  find  secntity  lor  good  behaviour^ 

lord  JHM(ja^.^In^onsideiingthejad^:aieii« 
Whi«h  &x6M  vb  pMaMmcOd  on  this  occa^on^ 
we  iMiitnrally  look  to  ihe  judgmeM  which  h«^ 
be<^  pronOttfteed  in  shnilar  tMepi  ahd  peM^ 
didarly  to  fhose  wbhft  have  beeti  referred  ttf 
by  lord  dermand.  For,  in  every  br^cb  or 
judicial  ptoeedtfre^  aiiil  in  nolhin^  fnorO  than' 
m  pronouncing  judgment  op  a  verdict  infetiteg*' 
aai  arbitraty  pnnithxnelltft,  it  is  desinble  to  be 
gnfided  m  ptecedents.  If  this  ease  bad  i^ 
iftmbled  &e  cas«  of  I^sbe  Palnker,*  to  viAiicIt 
it  has  been  assimilated  by  counsel,  I  thonld 
hayetH^it  asniy  orphiion  that  thepuniHh*^ 
lai^t  itionid  be  the  state  fts  in  thitt  casO.  And 
if,  utiliippil)r  ib^  this  €«>ntttty,  Mch  eates  of 
mi  ttid  agisted  tedition  fHaB  oome  before 
tm  CtthM^'-'Htei^  Utfle  to  be  distittgnlsftedl 
ft^lh  U^etMi-*^  wfll  be  my  tq^inion,  sM*  * 
ilifl  tiolieid«Hct)6n  Of  Ifte  biw,  kdd  Of  the  WMlW 
d^m  fttttej^Hyoi,  thuttransp^hrttic^  ii^fie 
pftyMr'ptiuilnttfeitf;   Bttt  X^kgree  w  tiMroplnoa 

•  S  How.  Mod;tk.  IV.  Mn 


1991 


57  6E0R0EUIL 


THAtfAUs^Mer  »Uhb 


[1«0 


which  hat  beeh 'eipMsMd^  tbitthSt  Uaouit 
very  different  from  the  others  alladed  to,  end 
that  it  has  a  nearer  resemblanoe  to  that  of  Ro- 
bertson and  Berry,*  than  to  any  others  whidi 
ocenrred  at  that  time  ^  and  I  therefore  thio|L 
that  iaporiaonment  is  the  appropriate  popish* 
meat-  in.  this  case,  and  that  wludi  is  pointed 
out  by  precedent.  As  to  the  duration  of  the 
confinement,  I  am  always  averse  to  long  im- 
prisonment'; and  considering  the  recommend- 
ation of  the  jury,  I  concur  in  the  limited  time 
proposed  in  this  case. 

Having  said  thus  much,  I  must  express  my 
hopes,  that  this  verdict  will  put  down  the 
crime  of  sedition  at  the  present  juncture  in 
this  countiy.  It  was  urged  in  defence  of  the 
prisoners,  that  the.  culpable  expressions  were 
employed  when  the  per^ns  were  met,  in  a 
season  of  distress,  to  petition  the  Kins  and 
both  Houses  of  Parliament.  But  surely  the 
right  of  petitioning  may  be  exercised  without 
making  the  speeches  and  resolutions,  at  such 
meetings^  vehicles  for  sedition  and  treason. 
What  was  said  in  a  former  case  as  to  the 
liberty  of  the  press  and  of  speech,  may  be 
applied  to  the  right' of  petitioning.  As  every 
nan  may  print  or  may  speak  what  he  pleases, 
so  mi^  he  use  what  language  he  thinks  fit  in 
his  petition,  or  in  the  speeches  and  resolutions 
accompanying  the  petition:  But  under  this 
condition,  that  if  in  his  petition,  or  in  the 
speeches  and  resolutions  accompanying  it,  he 
is  guilty  of  treason,  sedition  or  scandal,  he 
must  be  answerable  for  th^  consequences,  just 
as  he  would  be^ai&s^erabl^  for  those  crimes  if 
committed  by  him  in  eiercising  the  liber^  of 
the  press,  or  the  liberty  of  speech.  Why 
should  it  be  otherwise  P  I  cannot  believe  that 
this  necessary  restraint  on  the  right  of  peti« 
tioning  will  be  any  obstruction'  to  the  right 
itself.  If  the  real  object  of  the  petition  be  to 
6btain  its  prt^er,  why  should  it  be  couched  in 
offensive  termd  ?  Is  that  the  way  to  attain  its 
object?  It  is  the  very  reverse.  It  is  the  way 
to  get  it  refused.  *  Such  a  course  can  be  fol- 
lowed only  for  the  purpose  of  getting  a  refusal, 
and  at  the  same  time  spreading  alarm  through 
the  country*  To  checx  such  conduct,  as  the 
verdict  of  tlie  jury  tends  to  do,  instead  of 
iniuring  the  right  of  petitioning,  is  the  method 
of  securing  it,  and  rendering  it  truly  valuable 
to  the  oountnr. 

I  have  read  the  whole  of  the  pamphlet  from 
which  extracts  are  made  in  tne  indictment, 
and  I  am  sorry  to  sa^  I  have  formed  a  much 
worse  opinion  of  the  intentions  of  all  the  par- 
ties than  I  had  by  readipg  the  indictment,  or 
by  any  thing  that  passed  Qn  the  trial.  It  may 
iMve  done  little  injury,  fox  the  range  of  its 
circulation  was  limited ;  but  let  any  intelligent 
man  consider  what  would  have  been  the  con- 
sequences, if  t^is  pamphlet  had  passed  un- 
noticed, and  if  similar  publications  had  been 
circulated  in  every  village  and  populous  town 
in  the  country.    No  man  who  reads  this  pam- 

*  3  How.  Mod.  St  Tr.  79. 


phlet  dm  hesitate  to  say,  thal'hi'tiidl  a  case 
the  country  would  have  been  filled  vrith  the 
most  combustible  materials,  and  that  a  slight 
spaik  would  have  lighted  up  rebellion  from 
one  end  of  the  inland  to  the  other. 

I  shall  only  add,  that  if  the  prisoners  and 
their  associates  will  not  learn  wisdom  from  tiie 
verdict,  and  the  opinion  of  the  Court,  I  trust 
thejr  vrill  learn  it  from  what  was  uttered  by 
their  own  counsel,  with  a  force  of  eloquence 
which,  I  trust,  has  made  a  lasting  impressiokl 
on  them.  Mr.  Jeffrey  told  them  that  they 
were  treading  on  deUcate  ground,  that  the 
expressions  they  used  were  roost,  improper, 
inaecorous,  and  absurd,  and  that  what  they 
said  only  l^trayed  an  ignotantse  of  the  bubject 
on  whidi  they  spoke.  I. trust  they  will  re- 
member this  lesson,  and  that  all  others  will 
learn  to  profit  by  their  exajnple. 

JiOrd  Beiton. — I  am  of  the  same  opinioii 
with  the  judges  who  have  spoken  regarding 
this  verdict,  and  I  particularly  agree  with  the 
words  which'  have  fallen  fifom  the  last  judce 
who  delivered  his  sentiments.  I  shall -only 
fnrth^  observe,  that  while  I  concur  most  cor- 
dially as  to  the  punishment  proposed  to  be 
avrarded  in  this  case,  I  have  no  doubt  either 
of  the  right  or  the  duty  of  the  Court  to  inflict 
a  higher  punishment  when  required;  and  es- 
pecially to  award  the  punishment  of  trans- 
pprtation  in  a  case  of  aggravated  sedition; 
In  the  present  case,  the  short  period  of  im- 
prisonment which  has  been  suggested,  is,  I 
think,  sufficient,  all  circumstances  being  coi^ 
sidered. 


Lord  Jtatke  Clerk. — I  am  extremely  hapmr, 
that,  under  the  whole  circumstances,  of  tnu 
case,  and  particularly  the  recommendation 
whidi  has  been  given  to  your  lordships  by  the 
veiy  respectable  jury  who  had  to  try  it,  I  am 
eiud>led,  in  the  discharge  of  my  duty,  to  oon*> 
cnr  in  the  proposition  now  made  as  to  the 
punishment  which  ^should  follow  upon  this 
verdict.  For  I  have,  upon  the  most  mature 
reflection,  and  the  most  deliberate,  consider- 
ation I  have  been  able  to  bestow  upon  the  law 
of  the  case,  formed  a  clear  and  unalterable' 
opinion,  thiU,  for  cases  of  aggravated  sedition, 
such  as  those  which  have  been  aUoded  to  by 
some  of  your  lordships,  the  proper,  the  legi* 
timate,  the  necessary  punishment  for  this 
Court  to  award,  is,  the  highest  short  of  a 
capital  one. 

I  take  this  opportunity,  however,  of  stating 
as  I  before  did  to  the  jury,  that,  notwithstand- 
ing, the  particular  circumstances  and  aspects 
of  this  case,  it  does  not  appear  to  be  one  of 
that  highly  affgravated  class.  But  I  should  be 
guilty  of  a  dereliction  of  my  duty  if  I  did 
not  take  this  opportunity  of  distinctly  stating,, 
that,  though  not  one  in  the  highest  class  of 
sedition,  the  ofi)snce  of  which  these  prisoners- 
have  been  convicted,  upon  evidence,  dear, 
satisfactory,  and  convincing,  is  a  spledes  of 
sedition  attended  with  drcumstances  of  oon- 
8idend>le  aggravation. .  IallQde|injparticnlari> 


1411 


bnd  t%omai  Bnrd/or  IMiikm. 


A.  D.  1617. 


cua 


to  tlM»  cMe  of  the  fntener,  Tfaoims  Boirdi 
For,  though  I  did  not  think  it  neceAary  or 
proper  in  me  to  dwell  on  that  circomstance  in 
niy  obsenrations  to  the  jury  when  I  summed 
up  t6e  evidence  to  them,  I  do  now  think  it 
mj  duty  to  slate/  that  the  Situation  in  which 
that  gentleman  stood, — ^tbe  rank  of  life  in 
which  he  formerly  moved, — the  character  he 
poaiessed, — the  influence  he  had, — and,  above 
ally  the  commission  which  he  had  lately  held 
aa  an  officer,  do^  in  relation  to  this  offence, 
and  to  the  circumstances  in  which  it  was  com- 
mitted, render  his  case  of  greater  aggravation 
than  that  of  the  other  prisoner. 
*  This  gentleman,  although  moving  in  an 
elevated  sphere  in  the  town  of  Kilmarnock, 
and  seleeted  by  its  inhabitants  to  be  a  com- 
missioner of  p<riice,  is  proved,  by  incootro- 
▼ertibie  evidence,  to  have  associated  for  days 
witlrpetsons,  some  of  them  of  the  very  lowest 
laak  (for  McLaren  is  only  an  operative  wea- 
ver), temuBg  a  deliberate  plan  for  the  meeting 
wlikh  has  bioaghtp  him  into  his  nnfortuaato 
■itnatioo.  I  shmild  have  conceived  Mr.  Baird 
waifid  have  much  better  dischifr^  his  dotr 
to  his  country, — would  have  shown  a  nracn 
better  attention  to  the  general  distress, 
0br  which  I  greattv  fiBel,'biit  trust  it  is  now 
ttt  a. way  to  be  alleviated),  had  he  confined 
liis  exotions  to  contributing,  acoording  to  his 
means,  for  the  mitigation  of  that  distress, 
instead  of  taking  those  active  measures  which 
it  is  proved  he  did  take,  in  preparing  the 
business, — ^in  meetings, — ^in  concocting  the 
measures  of  the  day,— and,  above'  all,  in 
actually  putting  in  the  mouth  of  the  automaton 
who  api)eared  in  that  box,  a  speech,  which, 
when  It  is  examined,  will  be  found  to  contain 
the  most  scandalous  and  seditious  matter* 
For  the  contents  of  that  speech^  whether  Burt 
was  the  real  or  pretended  author  of  it,  Mr. 
Baird  rendered  himself  responsible.  .  I  must 
therefore  say,  that,  considering  Mr.  Baird  had 
filled  the  honourable  situation  of  Captain  in  a 
volunteer  corps,  he  had  altogether  forgotten 
his  duty  in  ever  lending  himself  as  a  party  to 
any  Buch  proceedings,  the  guilt  of  which  is 
nov  attadied  to  him  by  the  verdict  of  the 


1th  regard  to  Alexander  McLaren,  I  have 
only  to  say,  that  he  has  been  found  guilty  of 
ddveHng  ^a  :speech :  which  answer^  for  itself, 
and  I  shall  ada  nothing  more  on  the  subject. 

But  there  is  one  observation  which,  in  my 
former  remarks,  I  omitted  to  state  to  the  Jury, 
and  therefore  now  think  it  my  duty  to  make, 
Qpon  the  passage  in  the  indictment  taken 
mn  one  ot  the  speeches,  in  reference  to  the 
conduct  of  the  clergy  of  Scotland.  Your 
lordships  know  well  to  what  I  allude.  The 
passage  is^  **  Their  Beveretai  hirelings  would 
oonvince  yon  that  you  are  suffering  under  the 
visitation  of  the  Almighty,  apd  thexefore  ought 
to  be  submissife  imder  tne  chastening  stroke." 
I  have  asked  myself  thb  question,  after  pay- 
hig  ererv  attention  to  the  ingenious  and  elo- 
^oeat  observatioxa  piade  ia  order  to  give  the 


i 


go-1(y  W  tUe  pttssage;  what-ebuid  be  the  true 
meaning:  of  those  who  were  accessory  to  this 
most  seandalous  libel  on  the  clergy  of  Scot* 
land.  I  have  asked  myself,  whedier  it  was 
meant  to  be  applied  to  the  E^blished  Clergy, 
who  are  thus  oranded  with  being  *'  Reverend 
Hirelings,  who  would  convince  the  people  that 
they  are  suffering  under  the  visitation  of  the 
Almightv,  and  therefore  ought  t6  be  submis- 
sive under  the  chastening  stroke.''  IsUiere 
any  thing  in  their  character  to  warrant  such 
imputations  against  them  ?  Did  not  all  those 
who  attended  that  meeting  know,  that  there  is 
not  one  of  the  Established  Clergy  who  ia  not 
eompletelv  independent  of  the  crown  itself, 
and  that  they  hold  their  situations  as  securely 
as  any  perBOns  whatever  do  their  property  r 
What  is  there  then  in  the  conduct  and  darac* 
ter  of  the  Established  Clergy  which  could 
render  them  liable  to  the  shamefol  imputation, 
that,  as  hirelings,  they'oould  be  guilty  of 
incidcating  any  particular  doctrines?  And 
what  is  the  founaation  of  this  charge?  It  is, 
that  they  are  guilty  of  having  endeavoured  to 
impress  on  their  heareis,  that  the  distress  of 
the  country  is  to  be  viewed  as  the  dispensatioii 
of  Providence.  Is  there  any  man,  with  the 
slightest  impression  of  religion  on  his  mind, 
who  wiU  deny,  that  the  severity  of  a  bad 
season,  the  pressure  of  a  bad  harvelt,  proceeds 
from  we  will  of  Providence?  '  Or  was  it 
meant  to  be  impressed  on  the  deluded  and 
ignorant  hearers  at  that  meeting,  that  the 
Government,  or  any  portion  of  the  people^ 
were  responsible  for  the  distress  prevalent  in 
the  country,  which  had  been  occasioned  by  a 
bad  harvest,  that  had  doubled  the  price  of  the 
necessaries  of  life }  And  yet  because  resign- 
ation to  the  Divine  Will  had  been  recom- 
mended by  the  Qergyi  they  are  branded  as 
hirelings. 

On  the  other  hand,  I  have  asked  myself 
whether  this  charge  was  meant  to  be  imputed 
to  the  respectable  body  of  dissenting  clergy- 
men, who,  almost  without  a  solitary  exception, 
have  shown  themselves  to  be  attached  to  the 
best  interests  of  Ae  country,  and  have  been 
distinguidied  for  Uieir  loyalty  and  steady 
allegiance  ?  Is  it  this  dass  that  was  meant  to 
be  so  branded?  If  so,  they  have  to  tiiank 
those  of  their  flodLS  who.  could  gite  countenance 
to-  the  publication  of  such  sdtodal  against 
them*  This  passage  appears. to  me  to  desig- 
nate the  true  character  of  the  publication  as 
most  objectionable  and  inflammatory.  It  was 
intended  to  weaken  the  affections  of  the  peo- 
ple to  the  government  and  established  constitu« 
tion  of  the  countrjr,  while  the  character  of  the 
ministers  of  relision  was  likewise  to  be  de- 
Ipraded.  I  ask,  what  would  be  the  consequences 
,  if  such  ]^roceedings  were  unchecked  ? 

Notwithstanding  this  circumstance,  however, 
whidi  it  was  my  duty  not  to  omit  to  notice,  I 
am  happy,  that  in  reference  to  the  strong 
testimony  borne  to  their  good  characters  in 
timea  patf^  bached  by  the  recommendation  of 
the  Jury,  we  are  juimfied  in  the  discharge  of 


149J       «7  Q^QftQIi  (II. 


fruf  ^4hmitF  M*f<vw 


IM 


our  liMirad  4ttlr4"'te  OMMonncifla.  jdbA  flM 

pImII  be  impri^^ned  ^  f^  roi^iiftf  withip  jkhf 
T«i|b#Qai  pt  the  Caii«^«r«^  of  ];4MNmh  ((hia# 
ipfkkii^  the  pimialM^iit  ^f  kygnMP^^Anl  id 

(ihfkU  6^4  WMurity  0  |beep  the  pi^^fs^  for  thirfif 
Ittfwf  «q4fer  the  p^^^r  ^  SJOMJut.;  dad  Aat 
^ijdpaiider  M'l4ureo»  19  i«foen^  to  his  jof^ 
fnmfit%TWf§,  ihaV  «9ly  4ii4  ifcwrito  |;i^  jUk^ 
Hipfi  peruid  undfir  tf]#  pcM^y  of  40^ 

JU(99(ao4er  WLui^n  apd  ThiMB^  Bs4rd< 
p^r  fi  iag#t  oMofyl  9*4  Mtt»n(ive  ^  wdcucfLlpojil 
pf  Ae  ««M^  ciicnwitanofn  «if  4hft  ^^ie  tita^ 
fvw  ^ihihitad  wmst  f qu,  t  mr  of  your 
fOWItigr  has  foand  b^h  lod  ewihiQf  ^«l»  the 

to(Bf|B*q^^  gdiUypf  ihf  orwa  of  8edjltioi^ 
9»  ^Pktffc^  Ml  th#  iodfctpiaiNt.  b  ii^  I  pwi 
yipmni  )iK»th'9f  yw^  a  fviinCal  dufr  for  #a«  If 
Ijlippunpelo  yoiib  v>  pafareiice  ia  tVJ# ^^eidial, 
the  tudgi^^  ^ch  tho  CoDijt  ihM  fou^^  ii 
g^MfjWiy  to  inlaid  against  yw.    {  say,  I  do 

il  JvM»  a iaof TO  nag^  vi^m  i  pM^  m 

Ifal  lalPOilg  MPtimooy  iUw4  ^wai  b^iff*  lO  r9«r 
fpaw  go9d  ch^uEftctpai,    I  laiaopt  thai  yoia 

M  fcunaittad  yomatnia  Ao  haouilM  on  tWa 
wrfo^kaaiate  day  of  M^a  TKh  lof  De$ea»lbary  tba 
m#4oimt^,attd  tt#<otheiir  atoi"va»M  to  gUro 
fprfalatifo  toiirl^at  a  iiiiir  has  prfmowcad  Aa 
ba  stditio^  {  ^  tniat  and  L^  th«t  tha 
aaaul^  ^  t^l  wms^cX,  apd  ^t  Ahift  .opin^ony  yia^ 
^wm  )ip9fd'  pvoQouaoe^  Jby  tha  whaW  Court, 
paVtoro  kf  dnaoffaci^ipl^th  of  ypu;  Aat  it 
prMl  taaah  y/o^i,  thai  ho^ay^  ^pa,iqaDtfy  ippo*- 
ceat  four  fwcydioga  aow^  w^  .bee.a»  th^ 
di4iaai|to  uijcruaay  Mid  na^fht  taye  beafb  if 
the  asaiaiple  1^  :heea^eiieii%  foU9W€)d»  pror 
duaftiya  of  wAf^Ml  to  the  iataraMa  .of  your 
country.  I  trust  also,  the  salutary  chacfc  |^an 
0  ^aacaadinga  of  tips  description,  iirill  have 
an  Mpfpitaol  affect  on  the  pwblio  mind,  by 
ahofaiiig,  that/mioted  af  tha  >isht  of  patitiop  is, 
jmUtJIfBd  as  tha  peofiW  lOf  l&a  free  eovwtnr 
aia  tip  s(Ma  thair  tgnajvoicaa  lU)  government  and 
Ihvs  dagislatM^  ^  i^>  fwapt  .ou(t  vhat  nay 
^paar  to  Aem  as  rpmsdies,  that  ijght  afforda 
vpaoiiaan  or.wolaotioa  i/>  tho«^  ^ho^  in  ijba 
pmoMcmiou  ai  t^atjagafal  pbjeat»  toe  sight  of 
Ihak  4ui|[9  a«4  in>  swt^y  /of  Aa  oina  /af 

laditian. 


WWla  |bi  a ut^iaaM  of  tWt  oonfttif  an  ear 
^ad  iia  atala  their  gijavaaoea  to  the  I^^islatui^ 
^hey  awai  be  canifu)^  that  oaiUiar  in  the  pr»* 
^us  proaeediii|p,4ha  speeches  and  reaaluLioua* 
«or  ip  the  peutipu*  Otemaelves,  they  inseit 
natter  vhicn  is  cleariy  of  a  criaiaal  naloiu, 
^aditious  in  Us  tendency,  and  likely  to  pvodaoa 
Uistiog  mischief  to  their  ^pualiy*  It  inII  taadi 
thep,  thai  a)thoagfa  emiflad  W  exeacisa  Ihaf 
righlt,  t)tey  miast  not.  In  its  vMefmdp  be  guil^ 
ofj^  Tiolatioii  of  law.  I  t^te^oia  trust  that 
the  reoik  pf  this  trial  will  ha  of  importani 
banA  ^  yM^  in  the  aouma  of  ycnar  latnn 
liyes,  and  that  this  Court  shaU  sot,  with  negaai 
tp  j9ia  ofptbais,  hara  aoop  nmasio^  again  to 
$ini«Md?avtiou  tha  Clime  ojF  saditioa.  lUli^ 
wifSP  timat,  >that  coiuidaring  ithp  raaomBsandftr 
tipuiaf  Aha  jury,  and  the  knicpt  pnwahmaad 
whiah,  uadar  ab  ^be  ciraumat^mcAi,  is  about  4» 
be  awud^d  agajinst  you,  jmi  witt  &mkf  la^ 
>olva,  ahi^  i^eu  you  agiMwi  ratwa  taaooatg^ 
in  wluiifpu  fonwarly aoT/ed  in  ^  iMpact^falo 
fooy  iMmiaill  lie  iinoeialy  byslinyaar  heaits^ 
md  #maohiad  u>  the  !^9  aatarasts  of  ynar 
90iMitiy  md  the  canstiaation  ja^dea  which  you 
haiia4ha  ha^pinaia  lia 


^e  Lord  Justice  Cleit  and  Lords  Ctmr 
missioners  of  Justiciary  having  cpnsidered- 
l^e  verdict  above  recorded^  in  result  ^ereot 
decern  and  adjudge  tke  said  Alez^mper  Id^Lareji 
and  Thomas  Baira  to  be  carried  ftom  the  bar 
to  tl^e  Tolboodi  5>f  Caaongate  of  Edtnbui^b^ 
therein  to  be  detained  for  six  mpntfaf  from 
diisdate,  and  thereafter  unt^l  ihey  shall  fin4 
sufficient  caution  ^d  s^yrety,  acted  in  the 
books  of  Adjournal^  tot  'their  good  bdiaviour 
lor  the  space  of  three  years  from  and  i^er  the 
ezpiTalipn  of  the  s^  period  of  imprisonineny 
and  t^  under  the  respective  penalties  foU 
towing:  viz.  The  s^d Thomas  Baird  under 
the  penalty  of  200^  sterling,  and  the  said 
Alezandpr  McLaren  upder  t)ie  penalty  of  401.  f 
and  upon  the  lapse  of  the  spiid  period  .of  im» 
prisonment,  and  finding  caption  as  aibresaid, 
grant  warr^t  to  and  oraain  the  magistrates  of 
Canongate  and  keepers  of  their  l^lbooth  t^ 
set  fkt  said  .Thomas  Baird  .and  Ale^^ai^er 
M^uven  ^  liberty. 


(fSiSDtd) 


D.B^i^][.P.IX 


1451 


Trid  of  miUam  Edgar. 


A.  D.  1817. 


C146 


699.    ProceediDgs  in  the  Bigh  Court  of  Justiciary  at  Edinburgh, 

on  two  successive  Indictments,    raised  by  his  Majesty's 

Advocate,   against  William    Edgar,  for  administering 

unlawful  Oaths,  April  9th,  May  S6th :  57  Geobge  III. 
A.  D.  1817. 


COUBT  OF  JUSTICIARY- 
Apml  9y  1817. 


I 


lit.  Hon.  DaM  Boyle,  Lord  Justice  Cierk. 
.    hold  Bemand* 
LordGiOa. 
LoidJPata%. 
Lord  HaloR. 

Cowuelfot  the  Croitn* 

lEU.  Hon.  Akttmder  Maemiockie,  Lord  Advo- 
cate [afterwards  a  lord  of  Session  and  Jufiti- 
daij,  with  the  title  of  Lord  Meadowbank.J 

Jhma  Wedderhmjif  Esq.  Solicitor-General. 

H.  Warratier,  W.  S.  Ag^ent. 

Camudfor  William  Egfgm-. 

Mm,  Oarkj  Esq. 
Geo.  Crmrntotoif  Esq. 
Tko$»  2%0MMOii,  Esq« 
Jbnef  Momcrieff  Esq. 
Frtmd$  Jeffrtjf^  Esq. 
J.  F.  GrmU,  Esq. 
Hemy  Coddmmf  Esq« 
J»  A.MiBrrmf,  Esq. 

G.  W.  Boyd,  W.  8.  Agent. 

William  Edgar  and  John  Keith  w6re  placed 
«t  die  bar. 

Lord  J^iUce  Cferft.— William  Edgar  and 
John  Keith,  paj  attention  to  the  itioictment 
against  yoii^  which  is  now  to  be  read. 

<<  William  Edgar  and  John  Keith,  both 
present  prisoners  in  the  Castle  of  £din- 
boigfa,  yon  are  indicted  and  accused^  at 
the  instance  of  Alexander  Maconochie  of 
Meadowbanky  his  majesty's  advocate,  for 
his  mijesty's  interest :'  Ihat  albeit,  bv  an 
act  passed  in  the  fifty-second  year  of  his 
present  mi^esty's  reign,  intitaled,  *  An 
act  to  render  more  effectual  an  act  passed 
in  the  thirtynKventh  year  of  his  present 
majesty,  for  preventing  the  administer- 
ing or  taking  aniawfiil  oaths,'  it  is  mler 

'  oUa  enacted,  *  That  every  person  who 
shsil,  in  any  manner  or  form  whatsoever, 
adminiBler,  or  c^use  to  be  administered, 
or  be  aiding  or  assisting  at  the  adminis- 
tering, of  any  oath,  or  enpsement,  pnr- 
porting  or  inteading  to  bina  the  person 
taking  tiie-same  to  commit  any  treason  or 

VOLXSKOL  I 


murder,  or  any  fekmy  poniAahle  by  law 
with  death,  shall,  on  conviction  thereof 
by  doe  course  of  law,  be  adjndged  ffuilty 
of  felony,  and  suffer  death  as  a  ielon, 
without  benefit  of  clergy.'    Andfuither, 
by  section  fourth  of  the  said  act,  it  is  en* 
acted,  ^  That  persons  aiding  and  assist- 
ing at  the  administering  of  any  such  oath 
and  engagement,  as  aforesaid,  and  per^ 
sons  causing  any  such  oath  or  engagement 
to  be  administered,  thoogh  not  present  at 
the  administering  thereof  shall  be  deemed 
principal  offenders,  and  shall  be  tried  as 
such ;  and  on  conviction  thereof  by  due 
course  of  law,  shall  be  adkidced  guilty  of 
felony,  and  shaH  soffiBr  deam  as  felons, 
without  benefit  of  clergy ;  although  the 
persons  or  person  who  actually  aikiinis- 
tered  such  oath  or  engMement,  if  any 
such  there  shall  be,  slmlf  not  have  been 
tried  or  convicted,'    And  farther,  by  sec- 
tion sixth,  of  the  said  act,  it  is,  enacted, 
'That    any  engagement   or    oUigation 
whatsoever,  in  the  nature  of  an  oath,  pur- 
porting or  intending  to  bind  the  person 
taking  the  same  to  commit  any  treason  or 
murder,  or  any  fdony  punishable  by  law 
with  death,  shall  be  deemed  an  oath  within 
the  intent  and  meaning  of  this  act,  in 
whatever  form  or  manner  the  same  shall 
be  administered  or  taken,  and  whether 
the  same  shall  be  actually  adminisCer^ 
by  any  person  or  perscms  to  any  other 
person  or  persons,  or  taken  by  anv  other 
person  or  persons,  without  any  admini»* 
tration  thereof  by  any  other  person  or  per- 
sons:'   Yvt  Tnvs  IT  IS  AHn^orvaniTT, 
that  vou,  the  said  William  Edgar  and  John 
Keith,  are  both  and  each,  or  one  or  other 
of  you,  guilty  of  the  said  crimes,  or  of  one 
or  more  of  them,  actors,  or  actor,  or  art 
and  part :    In  a»  far  a$  you,  the'  said 
William  Edgar  and  John  Keitli,  having, 
at  Gclasgow,  and  in  the  vicini^  thereof,  in 
the  course  of  the  months  of  NovembcHr 
and  December  1816,  and  of  January  and 
Febnuuy,   1817,  wickedly,  maliciously, 
and  traitoroudy  conspired   and   i^reed 
with  other  evil-disposed  persons  to  break 
and  disturb  the  piu>lic  peaoe,  to  change, 
subvert,  and  overthrow  the  government, 
and  to  excite,  move,  and  raise  insurrec- 
tion and  rebdlion,  and  espedallyto  hold 
and  attend  secret  meetings,  for  the  pur- 
pose of  obtaiiMDg  annual  parliaments^  and 


1471 


57  GEORGE  til. 


Trml  of.  WObwm  E^ar 


iu& 


universal  suffrage,  by  unlawful  and  tio^ 
lent  meansy  did  then  and  there,  both  and 
eacb,  or  one  or  other  of  you,  wickedly, 
maliciously,  and  traitorously  administer, 
€t  cause  to  be  administered,  or  did  aid 
or  assist  at  the  administering,  to  a  gr^at 
number  of  persons,  an  oath  or  engage- 
ment,  or  an  obligation  in  the  nature  of  an 
oath,  in  the  following  terms,  or  to  the* 
following  purport : — *  In  awful  presence 
of  God;  I,  A  B,  do  voluntaiily  swear,. 
That  I  will  persevere  in  my  endeavour- 
ing 'to>  fbim  a  brbiheihood  of  affection 
amongst  Britons  of  every  description,  who 
are  considered  worthy  of  confidence;  and 
lltat  I  will  persevere  in  my  endeavours  to 
obtain  for  all  the  people  in  Great  Britain 
and  Ireland,  not  disqualified  by  crimes  or 
insanity,  the  elective  franchise,  at  the  age 
•f  twenty-one,  with  free  and  equal  repre- 
sentation, and  annual  parliaments ;  and 
that  I  will  support  the  same  to  the  utmost 
of  my  power,  either  by  moral  or  physical 
strength  as  the  case  may  require :   And  I 
do  further  swear,  that  neither  hopes,  fears, 
rewards,  or  punishments  shall  induce  me 
to  inform  on,  or  give  evidence  against  any 
member  or  members,  collectively  or  iodi- 
Tidoally,  for  any  act  or  expression  done 
or  made,  in  or  out,  in  this  or  similar  so- 
cieties, under  the  punishment  of  death,  to* 
be  inflicted  on  me  by  any  member  or 
members  of  such  societies.    So  help  me 
C^od,  and   keep  me  steadfast.'    Which 
oath  or  obliaation  dhl  thus  purport  or  in- 
tend to  bind  the  persons  taking  the  same 
to  commit  treason,  by  effecting  by  physi- 
cal force  the  subversion  of  the  established 
government,  laws,   and   constitution  'of 
diis  kingdom.    And,  more  particularly, 
you,  the  said  William  Edgar  and  John 
Aeitb,  did,  upon  the  1st  day  of  January 
181 7»  or  on  one  or  other  of  the  days  of 
thai  month,  or  of  December  immediately 
precedittg,   or  of  February  immediately 
following,  at  a  secret  meeting  held  for 
that  and  other  unlawful  purposes,  in  the 
House  of  WiUiam  Leggat,  change^keeper 
in  King-street,  Tradeston,  in  the  vicinity 
of  Glasgow,  or  elsewhere  at  Glasgow,  or 
in  the  immediate  vicinity  thereof,  both 
and  each,  or  one  or  other  of  you,  widcedly,. 
maliciously,  and  traitorously  administer, 
or  cause  to  be  administered,  or  did  aid  or 
assist  at'the  administering  an  oath  or  ob- 
ligation in  the  terms  above  set  forth,  or  to 
tiie  same  purport,  to  Peter  Gibson,  John 
M^Lauchuune,  Jcihn  Campbell,  atid  Hugh 
DieksQo^  all  presept   prisoners   in  the 
Castle  of  Edinbofgh ;  as  also  to  James 
M'£wAn,  now  or  lately.  caTding-^naster  at 
Hamphiies  Mill,  Gqrhals  of  Glasgow^  and 
ll*Dowal  Pale  or  Poat,  bow  or  lately 
weaver  in  PiacadAUf  Mtreet,  Anderston,  in 
the  vimnilgrofiGlaMcrw,  wfai»,  oonsvious 
of  tbdr  j^t-iia ne 'pettBMS,  lune  ab- 
fmmA&km^  ladL:ib«n4iWfi» ;  aa  abo  to 


John  Connelton,  now  or  lately  cotton- 
spinner  in  Calton  of  Glasgow,  or  to  one 
or  other  of  them,  and  to  other  persons,, 
whose  names  are  to  the  prosecutor  un- 
knojvD,  the  said  oath  or  ooligation,  thus 
binding,  or  purporting  to  bind  the  per- 
sons tsStiog  the  same  to  commit  treason,, 
as  said  is.    (2.)  And  further  you,  the  said 
Wifliam  £dgar  and  John  Keith,  did,  upon 
the  4th  day  of  January,  1817,  or  on  one 
or  other  of  the  days  of  that  mouth,  or  of 
December  immediately  preceding,  or  of 
February  immediately,  follpwing,  at  the 
house    of  Neill    Munn,  innkeeper  and 
stabler,    in  Ingram-street,    Glasgow,  or 
elsewhere  at  QlasgAw,  or  in  ihe  imme- 
diate vicinity  thereof,  both  and  each,  or 
one  or  other  of  you,  wickedly,   malici- 
ously, and  traitorously  administer,  or  cause 
to  be  administered,  or  did  aid  or  assist  at 
the  administering  an  oath  or  obligation  in 
the  terms  above  set  forth,  or  to  the  iaroe 
purport,  to  the  said  Peter  Gibson,  John 
M'Lauchlane,  John  Campbell,  Hugh  Dick- 
son, M'Dowal  Pate,,  or  Peat,  and  James 
M'Ewan ;   as  also  to  James  Hood,  An- 
drew Somerville,^  John,  Buchannan,  an^ 
James  Robertson,  all  present  prisoners  ill 
the  Tolbooth  of  Glasgow,,  or  to  one  w 
other  of  them,  and  to  olber  persons,  whose 
names  are  to  the  prosecutor,  unknown^ 
the  said  oath  or  obligation  thus  binding,, 
or  purporting  to  bind,  the  persons  taking 
the  same  to  commit  treason,  as  said  is. 
And  you  the  said  WiUiam  Edgar  having 
been    apprehended    and    t^ken.  before 
Daniel  Hamilton,  esquire,  one  of  the 
sheriffs-substitute  of  Laaaikshire^  did,  in 
his  presence  at  Glasgow,  on  the  6th  day 
.  of  March,  1817,  emit  and  subscribe  a  de- 
claration ;  and  having  been  taken  before 
Robert  Hamilton,  esquire.  Sheriff-depute 
of  Lanarkahirsy  you  did,  in  his  presence^ 
at  Glasgow,  upon  the  7th  and  8lh  days  «f 
March,  1817,  emit  and  subscribe  two  se- 
veral   declarations :    And  you   the  sai^ 
John  Keith  having  been  apprehended,  and 
taken  before  the  said  Robert  Hamilton, 
esquire,  did,  in  his  presence,  at  Glasgow, 
on  the  6th  and  7th  days  of  Biareh^  1817,. 
emit  and  subscribe  two  seveiral  declara- 
tions :  All  which  declaratioas,  beipg  to 
be  used  in  evidence  against  each  of  ^<m 
respectively,  will  be  lodged  in  due  Ume 
in  the  hands  of  the  Clerk  of  the  High 
Court  of   Justiciary,   before  which  yon 
are   to  be  tried,   that   you    nay^have 
an  opportunity^  seeins  the.samt*    At 
least,  times,  and  places  foke^aid,  the  said 
oath  or  aogagement,  or  au  oath  or  en* 
gagement    to  the   saoie   nnipost^  was 
wickedly,  malicionly,  4m  traitoaoualy 
admiaiateied,  or  caused  to  be  atoiiiia-> 
tend;    and  aoae  pmene  did  -M    or 
assist  at  the  admiaistexkig  theraof^  and 
you  the  said  William  E^^pnr  and, Jolm 
"ntilii '  ttfc./kfltfi  and:satrfi-  ei  '4Hie    %^ 


ItfM 


fir  AAmmttniiig  unbmfiil  Oaths. 


A.  D.  1817. 


CISO 


trther  off  jfOQj  piiKy  dMrao^  ^tdrs  or 
aetoiv  or  art  «nd  part.  All  which  or 
paft  thereof,  being  fouod  proren  by  the 
venKct  of  an  assize,  before  the  Lord  Jas- 
taco  Geaeia],  the  Lord  Justice  Clerk,  and 
Lords  Commissioiiers  of  Justiciary,  yon 
the  raid  WiHiam  Edgar  and  John  Keidi 
ongkt  to  be  punished  widi  the  pains  of 
lair,  to  deter  others  from  committing  the 
iifce  Climes  in  all  time  coming." 

<'  H.  Hon  Deummovh,  A.  D." 

UST  OF  WITNESS£8. 

t.  lUerf  EamiUonf  Esq.  aheriff-depute  ^f 

«.  Doaiel  BmuitoH,  Esq.  one  of  the  sherifb- 

substitute  of  Lanarkriiire. 
:3.  Darnel  M'Catium,  clerk  ta  John  Dl?ysdale, 

dienff-clerk  of  LanaikAire. 
4k  Maifkem  Bunu^  derk  to  George  Salmond, 

pracorator-fiseal  of  Lanarkshire. 
5.  Joim  LbMcj  eleik  to  the  said  John  Diys- 

dak. 
«.  Jatipk  Rod,  writer  in  Gkisgow. 

7.  Mtmtkr  Caldtry  6bjeriff>offioer  in  Glas* 

gow. 

8.  Jama  Thornton,  clerk  to  the  eaid  John 

Drysdale. 

9.  Jkrmmkr    £baUa%    cfaange^eepery    Old 

Wynd'Of  Glasgow. 

10.  Marion  MPLarmj  or  M'LaohHm,  now  or 

lately  servant  te  die  said  Alexander 
Honter. 

11.  Jokn  Robartumj  innkeeper  and  stabler.  Gal. 

lowgate  Glasgow. 
18.  Jgne9  CampbeU,  wi£»  of  Thomas  Dow, 
steam-boiler  maker  and  smith  at  Gird- 
wood  and  Company's  foundry  in  Hutch- 
eaontown,  in  the  vicinity  of  Glasgow. 

13.  Jamet  Bentcid,  now  or  lately  servant  to 

lieill  Munn,  innkeeper  and  stabler  iu 
ingiam-street,  Glasgow. 

14.  Atium  Wiliom,  now  or  lately  servant  to  the 

said  Neill  Munn. 

15.  Mattkem  Fnfe,  spirit-dealer  in  Wilson- 

street,  Gfasgoif . 
1«.  Jem  Boyd,  wife  of  the  said  Matthew  Fyfe. 

17.  WilMvm  Li^gn^,  change-keeper^  in  King- 

street,  comer  of  Centre-street,  Trades- 
ton,  in  the  vicinity  of  Glasgow. 

18.  -EBtfA  Dichony  present  prisoner  in   the 

Castle  of  Edinburgh. 

19.  PUer  GtUon^  present  prisoner  there. 

^30.  Join  M^Limcklanef  present  prisoner  there. 
m.  WUtiam  Simmon^  present  prisoner  there. 
33.  ioiMef  Bttody  present  prisoner  in  the  Tol- 

booth  of  Glasgow. 
33.  Jofai  CampheU^  present  prisoner  in  the 

castle  of  Edinmirgli. 
M.  ThmoM  AidoiTy  present  prisoner  there. 
H.  HoM£  Druicmovd^  a.  D. 


UST  OP   ASSIZE. 

County  cf  Edmburgk. 
Ctttmet  Sbott,  of  Ballemo. 


Bidtard  WooU^  of  WUf^use. 


Wkiie,  tobacconist  in  Dalkeith. 
Bobert  lAftt,  baker  there. 
Joftft  Woody  merchant  there. 
John  Brawny  farmer,  Carrington. 
Andrew  Johrutou,  farmer,  Primrose-barns. 

Counfy  of  Haddington, 

William  ilicAeson,  junior,  of  Drummore« 
John  Sonunervdl  of  Moreham. 
WUliam  Hcq/,  farmer,  Ilowden. 
John  Brodiey  farmer.  West  Fenton. 
Bobert  Uopey  farmer,  Feuton. 

County  of  UnUlhgow, 
WUliam  Gien  of  Mains. 
William  Dawion,  younger,  Bonnytoun. 
John  Trotter y  farmer  at  Stacks. 
^bert  Taylor,  residing  at  Blackness. 
George  TumbuU,  farmer  at  Northbank. 

Cify  of  Edinburgh. 

Robert  FraseTy  jeweller  in  Edinbuigb. 
lliomas  Bichardton,  merchant^tailor  there. 
IXivt^  Whitelawy  watdi^maker  there. 
Peter  Feddie,  trunk-maker  there. 
William  Trottery  upholsterer  there. 
Alexander  BuueUy  coach- maker  there. 
John  Inverarity,  upholstcret  there. 
George  Yule,  mercha**  there. 
Alexander  Aintlie,  saddler  there* 
John  Steel,  confectioner  there. 
James  Innet,  gunsmith  there. 
Daniel  Forrest,  hosier  there.  , 

Peter  SawerSy  saddler  there. 
Creorge  Hunter,  merchant  there, 
William  Boss,  tailor  there. 
Charles  McLean,  draper  there. 
John  Laing,  saddler  there. 
John  Mcpherson,  tailor  there. 
Francis  Davutson,  confectioner  there. 
William  Cooper,  boot-maker  there. 
William  Dumbrecky  hotel-keeper  there. 

ToumqfLeith, 

John  3iPKemiey  merchant  in  Leith.  ^ 

Archibald  Cleghom,  corn-merchant  there. 
Thomas  Mortouy  ship-builder  there. 
Robertson  Paterson,  painter  there. 
Charles  Bobertson,  merchant  tliere. 
John  Sanders,  agent  there. 
JoAit  Glover,  wright  there. 

An.  Gillies. 

d.  montpevvt. 

David  Douglas* 
L»rd  Advocate, — From  certain  circumstan- 
ces, I  find  it  proper  to  move  the  Court  to 
desert  the  diet  against  John  Keith  pro  loco  et 
tempore.  He  will  therefore  be  committed  to 
prison  upon  a  new  warrant. 

[This  motion  was  accordingly  agreed  to.] 

Lord  Justice  Clerk. — ^William  Edgar,  what 
do  you  say  to  this  indictment? — ^Are  you 
^uilt^  or  not  guilty  of  the  charges  contained 
in  it^ 

WiUiam  Edgar, — ^Not  guilty,  my  I/>rd. 

Mr.  CSra»i^(Wfi« — ^I  am  of  Qounsel  in  this  caae 


1511       ^  GEORGE  III. 

for  the  prisoner  at  the  bar.  Hie  indictmeot, 
which  your  Lordships  have  jtiBt  heard  read, 
charges  the  prisoner  with  a  capital  offence, 
that  of  administering  an  oath  purporting  or 
intending  to  bind  the  takers  to  oommit  the 
crime  of  treason. 

My  lords,  this  is  not  a  point  of  dittay  re- 
cognized by  the  ancient  and  common  law  of 
Scotland;  neither  the  nature  of  the  offence 
itself,  nor  the  manner  in  which  it  is  to  be 
charged,  is  pointed  out  by  any  precedents  or 
authorities  familiar  to  your  Lordships.  It  is 
an  offence  recently  introdnced  by  a  special 
jBtatute ;  and,  so  far  as  I  know,  no  trials  havft 
taken  plape  hitherto  upon  that  statute  in  Scot-- 
land,  acdordinir  to  your  forms. 

It  will  bjB  admitted,  that  this  crime  is  of  a 
nature  peculiarly  deUcate.  The  life  of  the 
prisoner  at  the  bar  may  depend  on  Che  con- 
struction to  be  put  on  words  alone,  without 
reference  jto  overt  acts  by  which  they  may 
receive  a  clear  and  unambiguous  interpretation. 
To  administer  an  oath  without  judicial  authority 
is  perhaps  riot  a  very  commendable  prajctice,* 
and  in  a  moral  point  of  view  it  may  sometimes 
be  improper,  as  tending  to  lessen  the  obligation 
4>f  an  oath,  when  thus  applied  to  frivolous 
or  improper  subjects,  o^on  frivolous  and  im- 
proper occasions^  But,  my  loids,  at  the  same 
time,  it  h  not  in  itself  an  illegal  thingf  it 
is  prohibited  by  no  law;  and  I  understand, 
jand  am  well  informed,  that  it  is  a  common 

*  Lord  Coke  says  (3  Inst.  165)  ^  Oaths  that 
have  no  warrant  by  law,  are  rather  nooa  tor- 
nienta  guam  tacramenta;  and  it  is  an  high  con^ 
tempt  to  minister  an  oath  without  warrant  of 
law,  to  be  punished  by  fine  and  imprisonment." 

The  cour^  of  King^  Bench  has  often  repre- 
hended, and  discouraged  as  much  as  possible, 
the  taking  of  voluntary  aflSdavits  by  justices  of 
the  peace,  in  extrajudicial  matters.  In  the 
case  of  Bramah  v.  The — '—Fire  Insurance  Com- 
parui,  Mich,T.  1800,  in  B.  R.  Lord  Kenyoa 
C,  J.  said  ^*  He  did  not  know  but  tliat  a  magis- 
trate subjects  himself  to  a  criminal  information 
for  taking  a  voluntary  extrajudicial  affidavit,** 
3  Chetwymtt  Bwm^  529. 

''It  is  much  to  be  questioned,"  says  Mr. 
JuUiee  Bbdatom^  ^  how  far  any  ''  magistrate  is 
justifiable  in  taking  a  voiluntary  affidavit  in 
any  eztn^judicial  matter,  as  is  now  too  frequent 
upon  every  petty  occasion  :  since  it  is  more 
than  possible,  that  hj  such  idle  oaths  a  man 
may  frequently  in  Jiro  contckntut  incur  the 
guilt,  and  at  the  same  time  evade  the  tem- 
poral penalties,  x>f  periuiy."  4  Qmm.  137. 

It  must  be  regretted  that  the  highly  improper 
practice  of  administering  what  the  learned 
commentator  terms''  idle  oaths,*'  should  be  still 
continued  by  any  magiatrates,  notwithstanding 
the  reprehensions  contained  in  those  books 
with  which  ihey  are  generally  8iq>poaed  to  be 
acquainted. 

t  Seethe  preceding  note,  and  the  observa- 
tions of  Le  Blanc  J.  in  EaMi  case,  ant^  Vol. 
10,  p.  1609;. 


Trial  of  WUUamBdgm^ 


[15S 


and  daily  piactice.  It  is  practised  in  many 
associations  and  Maternities;  for  example,  in 
masonic  meetings,  when  there  is  not  the  least 
intention  on  the  part,  either  of  the  persons  who 
administer,  or  of  the  persons  who  taae  the  oaths, 
on  the  one  part  to  impose,  or  on  the  other  to 
undertake  an  unlawful  obligation.  To  make  a 
common  pralctice  of  this  nature  the  ground  of 
a  capital  punishment,  when  the  guilt  or  inno- 
cence of  the  act  depends  on  the  interpretation 
of  the  mere  words  used,  may  appear  not  per^- 
haps  altogether  in  unison  with  the  mild  and 
equitable  spirit  of  British  jurisprudence.  Your 
lordsbqis  are  well  acquainted  with  tbe  statnte 
1.  M^ry,  chap.  Ist,  which  swept  away  ficom 
the  law  that  mass  of  constructive  treasons  by 
which  it  had  been  previously  polluted— a  stai 
tnte  hdd  by  the  natu>n  at  die  time  it  was  en- 
acted, as  one  of  the  greatest  blessings  ever 
conierred  by  the  legislature,  and  still  looked 
up  to  by  their  posterity  vrith  admiration  and 
gralitade.  Though  constnietive  treason  was 
tnus  abolished,  yet  the  statute  upon  whidi  the 

Sresent  indictment  is  founded  tends  to  intro- 
mee  a  capital  felony,  wbiah,  though  not  pi^ 
nished  as  treason,  is  yet  punished  with  death, 
the  n^ifliiMi  sifpJidMn  of  the  law. 

This  statute  was  no  doubt  passed  at  a  time 
when  banda  of  armed  men  were  committing 
evey  species  of  atrocity,   when    they  were 
buminr,   robbing,  and    murdering,   and   in 
particular  when  they  were.compellii^  persons 
by  force  to  swear  oaths,  unquestionably  and 
clearly  imposing   an    oblisation   to   oommit 
felonies.*    In  this  state  of  things,  a  speedy 
and  efficacious  remedy  was  necessary ;   and 
no  doubt  this  statute  was  passed  with  Uie  best 
intentions,  and  may  have  been  productive  of  the 
most  salutary  consequences.    All  &is  being 
avowed,  yet.considmd  as  a  standing  rale, 
incorporated  in  the  criminal  law  of  Scotland, 
and  applied  to  other  occasions  than  those 
contemplated  by  the  legislature,  it  was  not  per** 
haps  penned  with  all  .the  caution  requisite, 
and  may  involve  principles  which  it  vroiild  not 
be  very  safe  to  admit  permanently  into  our 
system  of  jurisprudence.    But  it  is  not  your 
lordships  province  to  judge  of  the  merits  of 
the  enactment,  and  far  less  am  I  entitled  to 
pronounce  an  opinion  upon  diat  subject.  -  It 
makes  part  of  the  statute  law  of  Scotland,  and 
that  is  enough.    But  althou|^  I  am  not  enti- 
tled to  inquire  into  the  expediency  of  the  law, 
it  is  my  right,  and  it  is  my  duty,  to  inquire  in 
what  manner  the  words  of  it  stnU  be  constni-r 
ed — ^in  what  manner,  being  part  of  the  erimi* 
nal  law  of  Scotland,  it  shall  be  applied  and 
accommodated  to  our  form  of  juoidal  pro* 
ceedings.     And,   after  folly  considering  the 
subject  in  this  more  limited  view,   I  trust 
I  shall  be  able  to  satisfy  your  lordships  that 
the  libel  in  this  case  is  not  relevant,  according 
to  the  principles  of  the  criminal  law  of  Scot- 

*  See  the  debate  in  the  House  of  Commons 
on  the  motion  for  the  introduction  of  thia  ata^ 
tute  33  Hans,  Farl.  Ctfb.  31. 


1531 


^  AMmtkring  utJtu^Oalki. 


iLD.  1817. 


tia4 


land.  This  is  a  subject  of  the  nlDMNit  impor- 
taoce,  and  tot  iririch  the  attention  of  your 
lordships  is  now  most  earnestly  requested. 

In  tliis  indictment  the  mijor  proposition 
sets  fiHtfa,  that,  **  Albeit,  by  an  act  passed  in  the 
fifty-second  year  of  his  present  Majesty's  reign 
intimled,  'An  act  to  render  more  effectual  an 
act  pused  in  the  tbirty-seTenth  year  of  his 
present  Msjes^,  for  prerentinff  the  administer- 
mg  or  taking  unlawml  oaths,^  it  is,  inUr  aUOf 
enacted,  l^at  every  person  who  shall,  in 
any  aaaoier  or  form  whatsoever,  administer, 
or  canse  to  be  administered,  or  be  aiding  or 
MSisling  at  the  administering  of  any  oath  or 
engagesBcnt,  pmrporting  er  iotendiog  to  bind 
the  peiaoo  tBiting  the  same  to  ooo&mit  any 
treason  -or  murder,  or  any  felony  punishable 
hj  law  with  death,  shall,  on  oonviction  thereof 
by  doe-  eonrse  of  law,  be  adjudged  guilty  of 
tdofo^j  and  sufief  death  as  a  felon,  witbout 
benefit  of  dergy/"  There  are  then  other 
Manses  of  the  statute  recited  in  this  major  pro- 
poaitioD. 

1  have  no  objections  to  make  to  the  migor 
|NopQsition  of  this  indictment.  It  is  oorrect 
SB  ledtiBg  the  elanse  of  the  act  eonstituting 
the  crime  sriiieh  is  now  to  be  tried;  and, 
theiefofe,  in  oonsideiing  this  proposition,  the 
«iily  thii^  to  be  attended  to  is,  toe  nature  of 
the  crime  which'  is  here  stated  to  be  punish- 
able with  death.  It  is  the  administering  an 
«ath,  **  purporting  or  intending  to  bind  the 
penon  taking  the  same  to  commit  treason  or 
WBider,  or  any  folonjr  punishable  with  death.'' 

Upon  readmg  this  clause,  your  Lordships 
wiU  be  satisfied,  that  it  is  not  sufficient  to  con- 
stitnCe  this  crime  that  an  oatb  was  adminis- 
teredr— it  is  not  suflBdent  that  the  person 
administering  that  oath  had  criminal  intentions 
at  the  time— or  that  he  was  engaged  at  the 
time  in  criminal  practices — ^it  is  not  enough 
that  the  person  who  takes  the  oath  intends  to 
eommit,  or  is  in  the  eourM  of  committing 
tfiminal  practices.  All  that  is  insufficient  to 
constitute  the  crime  here  set  forth.  It  is  ne- 
cessary,—it  is  the  essence  of  the  crime, — ^that 
the  oiik  administered  shall  itself  purport 
or  intend  to  bind  the  taker  to  commit  the 
crimes  specified  in  the  statute*  It  is  quite 
possible  that  two  persons  may  be  actually  en- 
gaged in  committing  the  crime  of  treason,  and 
wlule  thus  occupied,  that  one  of  them,  with  a 
view  of  practisiiig  a  deceit  on  those  who  were 
present^  and  of  ensnaring  them  into  the  traitor- 
ous conspiracy,  should  administer  an  oath  to 
his  aaaocmte,  under  the  pretence  of  binding 
him  lo  commit  the  treason.  But  if  that  oath 
did  not  in  ftct  impose  the  obligation,  it  could 
not  wanrnnt  a  oonvictioii  under  this  statute. 
It  mt^t  be  an  orert  act  of  treason,  and  all 
lhe.persons  present,  be  who  administered  the 
eath,  he  who  took  the  oath,  and  the  spectators, 
might  be  punishable  as  traitors,  yet  still  an 
indictment  under  thepresent  statute  could  reach 
■oue  of  them  ;  for  to  make  the  statute  apply, 
it  is  efssntial  dmt  the  oath  administered  pur- 
ports or  iateiKU  to  bind  the  patty  taking  it  io 


commit  treason  or  feloOT.  An  oath  not  con* 
taining  that  obligation,  however  nefarious  and 
detestable  in-  itself,  may  be  the  ground  of  a 
different  prosecution,  but  it  cannot  be  the 
ground  of  the  charge  now  before  your  lord- 
ships. All  this  is  too  dear  to  require  any 
illustration ;  it  must  be  manifest  to  every  one 
who  reads  Uie  words  of  the  statute. 

Having  said  thus  much  on  the  major  pro- 
position of  the  indictment,  we  now  come  to 
consider  the  minor  proposition.  Here,  as  in 
other  cases,  there  axe  two  subjects  of  inquiry ; 
1st,  Whether  the  fiicts  set  forth  in  the  minor 
amount  to  the  charge  in  the  major?  and,  2nd, 
Supposing  that  they  do,  whether  they  are  spe- 
dned  with  that  precision  and  minuteness  whidi 
are  required,  by  the  law  of  Scotland,  to  oonsti- 
tttte  a  relevant  indictment  ? 

The  minor  begins  in  these  terms:  '^Yet 
true  it  is  and  of  verity,  that  you,  the  said 
William  Edgar  and  John  Kdtb,  are  boUi  and 
each,  or  one  or  other  of  you,  guilty  of  the  said 
crimes,  or  of  one  or  more  of  them,  actors  or 
actor,  or  art  and  part :  In  so  far  as  yon,  the 
said  William  Edgar  and  John  Kdth,  having, 
at  Glasgow,  and  in  the  vidnity  thereof,  in  the 
course  of  Uie  months  of  November  and  De* 
cember  1616,  and  of  January  and  February 
1817,  wickedly,  malidously,  and  traitorous^ 
conspired  and  agreed,  with  other  evil-disposed 
persons,  to  break  and  disturb  the  public  peace, 
to  change,  subvert,  and  overthrow  the  govern- 
ment, uul  to  ezdte,  move,  and  raise  insur- 
rection and  rebdlion,  and  espedally  to  hold 
and  attend  secret  meetings  for  the  purpose  of 
obtaining  annual  iiarliaments  and  universal 
sufirage,  by  unlawnd  and  vident  means,  did, 
then  and  there,  both  and  each,  or  one  or  other 
of  you,  wickedly,  matidously,  and  traitorously, 
administer,  or  cause  to  be  administered,  or 
did  aid  or  assist  at  the  administeiin|^  to  a 
great  number  of  persons,  an  oath'  or  engage- 
ment, or  an  obbgation  in  the  nature  of  an 
oath,  in  the  following  terms,  or  to  the  follow- 
ing purport." — And  then  the  words  of  the  oath 
are  recited. — *^  In  awfol  presence  of  God,  I, 
A  B,  do  vduntarily  swear,  That  I  will  per- 
severe in  my  endeavouring  to  form  a  brotner- 
hood  of  affection  amongst  Britons  of  every  de- 
scription, who  are  considered  worthy  of  con- 
fidence ;  and  that  I  will  persevere  in  my  en* 
deavours  to  obtain  for  all  the  people  in  Great 
^tain  and  Ireland,  not  disqualified  by  crimes 
or  insanity,  the  dective  franchise,  at  the  age 
of  twenty-one,  with  free  and  eqinU  represen- 
tation, and  annud  pariiaments;  and  that  I 
will  support  the  same  to  the  utmost  of  mv 
power,  either  by  moral  or  physical  strength 
as  the  case  may  require:  AndJL  do  further 
swear,  that  ndtber  hopes,  foars,*  rewards,  or 
punishments,  shall  induce  me  to  inform  on, 
or  give  evidence  against,  anv  member  or  mem- 
ben,  collectively  or  individudlyy  for  any  act 
or  expression  done  or  made,  in  or  out,  in  this 
•or  simikr  societies,  under  the  punislunent  of 
deadi,  to  be  inflicted  on  me  by  any  member 
or  members  of  such  societies.    So  bdp  me 


16S) 


57  CBOBOE  IIL 


Im  theiiidiolmeBt»  thai  tids  oath,  «r  bI  ^mm 
mn  '••Al  af  tli«  8MI16  farpofl^  i«u  ftdiiiiiri»* 
4«re4. 

li  is  here  Mt  fitrtby  thattW  prinMr  at  the 
bar  WW  is  the  couie  of  coomiiCtia^  certain 
Mnoastriaie^  ISraBecrhaa^  your  lovAsMj^ 
will  obserra^  an  aot  kid  aa  a  aabatantiva 
chagga  a^ui  tha  piiaaatr;  and  it  it  tiapos- 
aiUa  tittt  tkay  ihouid  ba  to  laid  in  this  indict, 
■leal,  kft  a  prisMiar  oaa  ba  chirged  with  no- 
ikiBf  Ml  die  ntmay  but  wiuit  anounta  to  the 
ariaat  laid  in  tha  aaajor  prapoiition«  I(  is 
aaid,  that  tba  mitosiar  lunriaf  cositDilted  tbota 
•ananaty  did  adamitter  Ihe  oath.  But  thote 
cnnes  are  noH  hiid  with  a  view  to  iniict  pa* 
«iahBftettt  fla  bin  fof  then,  though  peibapt 
they  are  stated  in  motkm  probtiihm  of  another 
critne.  it  is  inooaspetent  in  the  minor  propo- 
rtion of  the  iodietmeBt  to  say  that  the  ptisoner 
at  gnilty  of  a  felony  aot  charged  in  the  nftjoty 
ia  Older  to  pnnish  him  for  that  felony.  Tha 
^haiye  in  thn  indictmeBt  is  for  administering 
ma  nnlawfol  oath ;  and  wbateTer  facts  comiect- 
jed  with  a  eeparate  criase  are  set  forth  in  the 
aainor  only,  they  make  no  part  of  the  charge 
•against  the  prisoner  at  the  bar. 

I  trust  I  shaH  aftarwaids  show,  thbugh  it  is 
fiat  at  preaent  the  time  to  make  inqoiry  into 
IhiSy  that  however  atroctoos  the  crimes  here 
Jiffirmed  to  have  been  committed  by  the  pri^ 
•aoner  may  be,  as  they  are  in  UicmselTCs  totally 
iffeloTant  to  infer  the  crime  with  which  he  is 
vaaHy  charged,  so  at  the  same  time  it  is  in- 
coaspelenty  according  to  the  law  of  Scotland, 
4o  bring  any  pioaf  of  those  crimes.  This  I 
jhall  postpone  for  after«oensideralioa,  pro- 
«aeding,  in  the  mean  tinie,  to  consider  the 
oath  wideh  was  administered,  which  is  said  to 
purport  an  oUigalion  on  tha  taker  to  ootnnit 
treason. 

Tha  oath  is  ta  tbese  words  >^*  In  awfol 
oreaenae  of  God,  I,  A  B,  doToluatarify  ^wear, 
That  I  will  persevere  in  my  endcaTouriag  to 
form  a  brotherhood  of  afihction  amongst  Britons 
.of  every  daaeriptiom,  who  are  considered 
•worthy  of  confidence;  and  that  I  will  per- 
aevare  in  my  endeavonrt  to  obtain  for  all  the 
people  in  Great  Britain  and  Ireland,  not  dis- 
anaiified  by  Crimea  or  insaai^,  the  cibeotive 
vancbise,  at  the  age  of  tweatr^one,  with  free 
and  equal  representation,  and  annnal  pariia* 
manls ;  and  that  I  wiH  support  the  same  to 
te  atmest  of  my  power,  hither  by  moral  or 
physical  strength^  as  die  caae  mar  reqaiiv: 
And  I  do  further  swear,  that  neither  hopes, 
foata,  lawanfc,  or  punishments,  shall  induoe 
me  to  inform  on,  or  give  andenoe  against,  an^ 
momber  ot  mcftiben,  coHeotively  or  iiMli«». 
dually,  for  any  aet  or  evpression  done  or  made, 
.ia  or  out,  in  this  or  similar  societies,  nnde^ 
-the  panishauiat  of  deaith,  to  be  iniioted  on  nne 
by  any  member  or  members  of  aueh  societies. 
So  help  me  G«d,  and  ke«p  me  stedfast/'«M. 
Then  it  is  tfl|id,  ^  Which  oath  or  oiligatioa 
did  thnapwpart  w  iadend  to  band  the  persona 
tafcitg  iio^ma  m  aottmit  maton^  by  mctiag 


TfUffmOminSdg^ 


Lisa 


by  phjnieal  force  flie  sulM<Mion  of  the  estaA>- 
Kshod  igov9mmm%,  laws,  and  oonstitation  of 
this  kingdom." 

Bert  the  prosecutor  recites  the  oath,  atad 
aajia  that  it  purports  an  <Mgation  on  die  pter- 
son  takiag  it  to  commit  treason,  by  effecting 
by  physical  fotoe  the  snbvorsion  of  the  estab- 
lished goremment,  laws,  and  conslituftioa  of 
this  kiagdom*  Bnt  it  is  not  enough  that  the 
piosecutor  says  it  has  that  purport.  If,  on 
eondidering  the  oath  itself,  your  lordshipa  are 
of  opinion  that  it  does  not  imply  what  tho 
prosecutor  alleges,  his  tnere  avermeat  that  it 
ia  an  oadi  of  a  certain  purport  will  not  mako 
it  so ;  and  he  is  wot  entitled  to  have  that 
question  sent  to  the  jury,  for  that  would  bo 
taking  from  the  Court  the  question  as  to  tho 
reloTancy  of  the  indictment. 

Suppose  in  an  indictment  for  perjury,  tha 
prosecutor,  after  allegibg  in  general  terms  that 
this  spedftc  offeiice  has  beeb  committed,  pro- 
eeeds  ix^  the  minor  proposition  to  give  the  do* 
position  of  the  prisoner  in  detail,  and  aAer« 
wards  to  contrast  it  with  what  be  alleges  to  be 
the  troth,  asserting  that  there  is  such  a  manifest 
discrepancy  as  necessarily  implies  the'  com^ 
missioa  of  the  crime  chai^g^ — still  his  mem 
assertion  on  this  snUect  will  not  be  sufficient ; 
and  if  the  Court  nail  be  satisfied,  on  com- 
paring the  alleged  truth  with  the  alleged  felse* 
nood,  that  there  is  not  an  absolute  contra^ 
diction  between  them;  in  other  words,  that 
what  the  prisoner  has  sworn  may  be  recon- 
ciled with  what  the  posecutor  says  he  ought 
to  have  sworn,  you  will  not  hold  the  indict- 
ment to  be  relevant,  nor  send  the  charge  to  a 
jnry  to  be  tried.  That  being  the  case,  if  your 
lordships,  on  reading  thb  oath,  be  of  opinion^ 
that  it  does  not  purport  what  the  public  pro* 
seeutor  says  it.parpoiu^  then  I  say  this  ia  an 
irrelevant  libel. 

It  is  true  that,  besidet  the  word  ^  purport^ 
iBg,**  there  is  aaetber  word  used  here,  **  in<* 
tending.'^  What  is  the  signification  of  tho 
word  iniendiMg  I  ^hall  afterwards  consider,  and 
it  is  of  material  importance  to  this  case ;  bnt 
let  us  see,  in  the  &rst  place,  what  is  the  signi^ 
fication  of  the  term  purport.  This  term,  aa 
every  body  knows,  is  applied  to  deaote  the 
meaning  of  words  as  gathered  irom  the  word9 
themselvea — ^the  meaning  as  eipreued  in  eon-« 
tradistinotion  to  the  meaning  which  may  bo 
mmfechutd  from  extrinsic  feels  or  circam- 
siances.  Look  then  at  the  words  of  the  bath, 
and  see  if  it  purports  what  the  prosecutor  saya 
it  does.  No  man  who  reads  it  can  say  so. 
The  words  of  the  oath  are,  **  1  wiH  parsevero 
in  my  endeavouring  to  form  a  brocherhood  of 
aCBOtion  amongst  Britons  of  every  description, 
vfho  are  consuiered  worthy  of'  confidence.** 
Nobody  will  pretend  to  say  that  there  iaan 
obUaation  to  commit  treason  here.  There  ia 
aa  obligation  to  form  a  brotherhood  of  affeo- 
tioa.  AH  the  subjects  of  this  ookmtry  are 
btotfaers ;  and  it  is  boooming  that  they  shoaM 
dwell  together  in  unity.  Inis  cannot  pwrpoit 
any  thing  to  b»  fimi  thaiA  ia  iaipt^r.'  Th^ 


457-1 


Jor  AJmmUtsriMg  vmUi^^A  Oaths* 


A.  D.  1617. 


LIM 


o^  then  gpM  on,  "  That  I  will  perstv«ra  in 
my  end^^iTcmn  to  obuia  for  «U  the  [^opl«  oif 
Orest  BitMa  tnd  Ireland,  not  disqiu^ed  by 
criiaes  or  iosaat^^  tlie  elective  firamchise^  et 
the  age  of  twentT-ODe,  with  free  and  equal  le- 
pfBfentalioD,  and  aoaual  padiaBMita."  There 
are  few  penons  at  preient,  who  are  qua^ified^ 
^iiher  horn  their  natural  paUg  or  inforMMOioOy 
tp  jodge  of  subjecli  of  this  kind,  who  witt  b» 
of  opiaioii  that  either  anaoal  pariiamenti  or 
VDwersal  saffrage  would  be  of  adrvaotage  tp  the 
ipbabitaQfa  of  this  countiy,  or  would  ooaduoa 
tio  aay  thing  else  than  anarchy  in  the  fi^  in- 
stance, and  deapotism  in  the  eod*  9ulr 
although  this  be  true,,  it  ia  well  known  to 
your  lordships,  that  it  ia  the  piivilege  of  every 
inbject  in  this  oountiy,  to  fonn  hia  own  opinioo 
on  aobjects  of  a  poUtieal  nature;  and.haviiig 
formed  his  opiaion,  he  may  make  u^e  of  law* 
fol  means  to  have  such  dianges  produeed  in 
the  ooostitntion  or  goveranent  of  the  cooqtry 
%sbe  may  think  expedient.  The  lagi^Utare 
Ipi^at  diment  tiqses  alleied  th(»  duration  of 
padiament  and  the.  mode  of  suffrage ;  and  if 
ai^  pmoQ  believes  that  annual  parUaments 
and  universal  txifftt^  would  be  of  benefit  to 
the  countiy,  it  ia  no  crime  to  use  lawful  en- 
d«.vours  to  obtain  these  object^  which  can 
only  be  obtained  lawfully  by  ap  act  of  thi» 
British  parliament  itself:;  and  you  know»  tha^ 
petitioos  ibr  such  objecls  ve  daily  presented 
la.pvliam^ot,  and  daily  received. 

It  is  said  in  the  oath,  "  I  will  penevere"  in 
^lese  endeavours.  If  the  endeavours  are  law*- 
&1,  the  perseveriog  in:  them  is  np  orime.at  all« 
It.  is  not  said  iu  the  oath^  or  in  a^y  part  of  th^ 
indictaBent,  that  the  prisoner  was  engaged  in 
ualawfiil  prqeots  for  these,  purposes.  It  is 
ssid,  indeed^  iu  the  indictment,,  that  the  peD* 
sons  who  administered  the  oatfi  were  engaged 
in  a  tMflsonaible  cpaipiraqr;  hut  there  is^no 
^>ecificatioii.  of  circjamstaneas  to  evinee  tha 
potoiMf^s  a^ession  to  this.  conspi'acj> .  Df>r  if 
t^  effence  of  oonspin^y  apy  part  of  the  sub- 
stantive charge  made  a^^nst  him  in  the  in* 
dielBsant.  That  being  th^  case,  tbeoa^i  or 
obligation  to  endeaivour  to  obtain  annual  paiv 
Kanaants  and  univeisel  suirage,  is:an  o)>Hg%> 
tioo  in  itself  perfectly  inooeePlt.  Your  lei4r 
ships  will  notsav  that  these  eodaavouts  ata 
vnkvwfiU,  nor  witl  you  impute  iniptoper  moy 
tives  to  the  pa^  inproseeutiii^  them,  for  yen 
are  not  antkorised  to  make  such  an  in^dr 
Bient.  yfbm  arpqtsenjpromisos  to  use  eriN^ 
eadeaflroof  to  aoeen^ish  Vk  objeet,  the  gene- 
ality  of  this  ezpinssion  vnll  oeivar  ciotend  it 
to  uola^«f«l  endeavouvs-^it  west  he  .construed 
with  the  comaan  and  necassaiy  limsiatian^ 
Ihat  he  wiUiose  evaiy  endfnvewr.wbieh  tefnay 
hmUOfVH*  Ifthis,pi»nciple.of4)QBStinctiaD 
ware  n9t«dQp4ed#  the  onh  of  jal^wmlion  itsalf 
auglit  bnem^arted  intn  wa  ohiigalian  to 
MnmittmesaA.  "•  I  do  Mhft%  .proaiiM,  it 
fJb»  nii^oaief  mjfpovNBT^  u^/mppoit,  wMnnytain^ 
^M-tSntod^MiisiimMiontof Aa Oa^^  fnup 

it  by  lawfid  mmm    l»if«itjVri 


The  oath  in  the  indietmeat  then  goon  on  tfl 
sqy,  ''  that  I  will  support  ik^taam  to.the  ^tmcil 
of  my  power,  either  by  moral  or  physicfyi 
strength,  as  the  case  may  aai|niBe/*    Support 
wbatr    UereisanainbifguitymtheoMth;  audi 
an  ambiguUy  which  shews  how  hamgrUms  it  in 
to  admit  constructive  treasons  reared  14ms 
words  uttered  by  persona  not  critically  an* 
quaiated  with  the  imperfect  infltmment  «f 
language.    Interpret  this  passage  any  wi^  yon 
ehusa»  i^  will  not  anUHUit  to  any  thing  criminaU 
Even  supposing  that  it  binds  the  party  takiM 
the  oath  to*obtain  the  olyects  which:aie  apedted 
ipMtrbymoralioQphvsicalibro^whatisthe  isMltl 
it  is,  that  lasrliil  omaou  am  to  be  ohtainsd  ^ 
lawful  measures.    No  person  cnn  he  hUmen 
£or  exerting  his    utmost!  effoKs  undnr  tel 
limitation^    Or  take  the  only  other  oonstnao* 
tion  which  can  be  putiupon  this  clawa<of  tiki 
oath,  and  auf)pofin;tha  party  to  jwenr^  that  tag 
will  siipport  annual  parliamems  and  unmemal 
suffuge  tp  the  utnumt  of  his  pownr,  mknaMnii 
0^$  ihall  W  2ncn  aklmmdi  that  he  wiU  wm 
his  best endeaivoum  tp^continua  and.  perpetuata 
these  iroaginaiy.  bl^mipgp,  when  Aaiy  ahatt  onon 
have  been  psoonred  for  theceuntiy;    lathm 
an  unkwiful  obligation?    licevtmnlyia  imt4 
If  lawfol  d^cla  are  obtained  in  a  lawfnl 
mnnner,  then,  it  is  the  dnty  of  gnod  mbjanli 
to  support  and  continue  them*    So  ihn  whaii» 
ever  construction  you  put  upon  this  clauat<of 
the  <mii>  whether  ^mt  snfipeae  it  tn  relet  to 
anteiiprises  for  obtaining  what  does  not  afarandy 
exists  or  for  suppoiting  imptoremania  alW 
th^  shall  ba  .established  bylaw,  H  is  in  eithei 
case  perleotty  jfrioeentt^-With  segflird  to  thn 
Uims  ''  motel  aed.physimi  atmngth,''  Imay 
remark,  a  man  may  support  what  is  lamM 
either  by  the.one«oa  the  othet^  and  yet  baAree 
Irem  blame.    The  indindnala  attempting  tn 
piQcam  annnaliparliamanls  and-nnifamid Jttfc 
hagft,  mlc^i  emplnr  their  mond.sMngth  for 
that  pnrp0f e  by  usinf.  trgumentSi;  or  thaif 
phynioal  atrangili,  for  instanne^  by  being  dam 
patched  with  lettem  m>d.mssaagis,.or  goinjg 
about  to seboit  ammbemof  pasUmnent  for  thait 
snppettrf    Ajmrsen  may  eieot  bnalingi,  e*d 
may  keep  on  the  rabble-4ie  amy  employ. hii 
phynsal  Ibsae  in  twenty  dtfismnt'ways  withmH 
doing  any  4hing4lmt  ia  unlawfol. 

The  oath  eondades,  "M4^  I.  doi  fnsthnr 
swnas,  that  naithnr  fasfiei,  foam,  raiwmdi».off 
punishments,  shall  induce  me  tO'infom^.on,  ni 
grie^videnaa  against,  anymmnber.  or  mmm 
bem,  eoUnitivaly  or  inditadnally,  foe  anymda 

^^w  **^^^n^vn^n^p^^^^^w  a^^^^an^a?  ^^*   ana^n^^^^n  earn  jnna  ^n^^^m^   ^^n»   nnamm 

or.svmte  aacietins,  under  tha.pnnishnwnt^ 
death,  toube  iuAlclad  *on  Jmi  hy  nny,  mmBhar.or 
membaw.  «f.  anoh.  saeielics*.  SDhelpiiitn 
God^  and  Imep  mnetedfitfl*''  Itadmitnicnm^ 
itiaimpro|ierjfor  any  person  .to  Andmlnkni  an 
bbligatmnnait  fto.giTe midmse^  B«it4hni.ia 
notaooUigationrlnnanmntlraan>ns  itinnnty 
it  mjnisdflnmmnr  miHiimliishi  wmtew 


*Npt»one  nl 


laCsiihn'nB^hiaan 


not  by  folony,  aiuder,  or  treason. 


1501        ^7  GEORGE  tit. 

Read  the  oath  from  beginiung  to  end,  and  say, 
does  it  impose  any  obligation  to  commit 
treason  T  Itead  the  words  a  hundred  times 
oyer,  and  still  it  will  be  imposdble  to  say  that 
such  is  its  purport.  For  it  may  be  explained 
to  mean  an  obligation  to  endeavour  to  obtain 
lawful  objects,  and  cannot  fairly  be  explained 
to  mean  any  thing  else.  I  am  speaking  of  the 
purport  of  the  oath,  and  not  of  what  might  be 
the  intention  of  the  parties  at  the  time ;  and 
if  that  oath  does  not  purport  treason,  there  is 
an  end  of  the  present  indictment. 

The  public  prosecutor  immediately  adds, 
^  Which  oath  or  obligation  did  thus  purport 
ot  intend  to  bind  the  persons  taking  the  same 
to  ooramit  treason,  by  effecting  by  physical 
tooe  the  subfersion  of  the  estaUished  govem- 
menty  laws,  and  constitution  of  this  kingdom.*^ 
No  doubt  Uie  prosecutor  makes  that  averment. 
But  I  say  the  averment  is  utterly  unfounded, 
and  that  the  oath  does  not  purport  the  obliga* 
tion  vdiich  he  says  it  purports.  It  is  for  your 
lordships  to  judge  whether  it  does  so  or  not ; 
and  if  you  are  of  opinion  that  it  does  not,  then 
nodiing  that  the  prosecutor  affirms  on  the  sub- 
ject can  have  the  smallest  influence,  as  he  is 
not  entitled  to  go  to  the  jury,  and  leave  it  to 
thAsm  to  determine  what  is  the  purport  of  the 
oath;  for  that  would  be  to  take  the  relevancy 
of  the  indictment  out  of  your  hands  into  his 
own. 

The  prosecutor  has  given  you  a  ffloss  or 
comment  on  the  oath,  and  you  will  judge  if  it 
be  coirect.  The  civilians  nuTe  a  nickname,  I 
forget  what  it  is,  for  a  gloss  which  extracts  a 
meaning  from  the  text  exactly  the  reverse  of 
what  it  naturally  bears.  Ibis  gloss  is  precisely 
of  that  nature. 

In  the  oath  there  are  the  words, '^  I  will 
support  the  same  to  the  utdiost  of  my  power, 
eimer  by  moral  or  physical  wtrmgtK"  in  the 
prosecutor's  comment  the  word  force  is  substi- 
tuted for  strtngjth,  Tliat  may  be  thought  im- 
material, and  to  have  proceeded  from  inatten- 
tion, but  it  is  not  so.  It  has  been  introduced 
in  order  to  insinuate  something  different  from 
what  the  oath  purports.  Strength  in  common 
language  applies  to  bodily  exertion.  Force 
applies  to  an  assemblage  of  armed  persons. 
Although  you  can  speak  of  an  aimed  force, 
you  cannotspeak  of  an  armed  strength;  acircum- 
stance  which  shows  that  the  meaning  of  the  words 
is  not  the  same.  The  prosecutor  by  this  clause 
means  to  insinuate,  that  the  parties  were  to  en- 
deaTour  by  an  armed  force  toootain  their  objects ; 
a  purpose  which  cannot  be  inferred  from  the 
woMs  of  the  oath  at  all.  It  is  further  said, 
that  the  oath  was  to  bind  to  the  ^'  subTcrsion 
of  the  established  goremment,  laws,  and  con- 
stitution of  this  "kingdom,"  but  there  is  nothinff 
flrom  the  beginning  to  the  end  of  the  oath 
about  eHtdimg'  any  thing.  The  parties  'bound 
themselves  to  use  endeuTouis  to  ^  obtain 
ananal  parliaments  and  universal  suffrage; 
and  these,  if  obtained  in  a  lawful  manner,  are 
not  a  subTe'isibn  of  the  government,  laws,  and 

The  gUMS|  tliexe- 


Tritd  of  WUtiam  tdg^ 


[tea 


fore,  has  extracted  a  meanine  from  the  text 
exactly  the  reverse  of  what  uie  words  bear.. 
The  public  prosecutor  cannot  be  allowed  to' 
do  this ;  ana  Uie  libel  on  that  account  is  irre- 
levant. 

But  I  go  forlher,  and  I  request  you  to  ob- 
serve what  may  not  at  first  sight  be  apparent, 
but  which,  on  full  consideration  of  the  law, 
vfill  immediate^  occur  to  all  of  vou,  that  even 
on  the  supposition  that  this  oath  did  purport 
what  the  public  prosecutor  says  it  does,  yet  it 
would  not  purport  an  obligation  to  commit 
treason.  For  I  maintain,  that  persons  bound 
to  effect  by  physical  force  the  subversion  of 
the  established  government,  laws,  and  consti- 
tution of  the  kingdom,  are  not  necessarily 
bound  to  commit  treason.  It  b  well  known 
to  your  lordflihips  that  there  are  two  great 
species  of  treason  in  law.  We  shall  dismiss 
from  our  consideration  at  present  a  great  many 
treasons,  such  as  debasing  the  coin,  murdering^ 
judges,  Ibc.  with  which  the  public  prosecutor 
does  not  and  cannot  pretend  that  this  oafli 
could  have  any  connexion  whatever.  There' 
are  just  tvro  kinds  of  treason  specified  in  the* 
statute  of  Edvrard  Srd,  to  which  it  could  pos-^' 
sibly  refer;  Ist,  compassing  the  kinff^s  death  i 
2nd,  levying  war  against  him.  I  shall  after-^ 
wards  speak  of  a  third  treason,  established  by' 
a  snbseauent  act,  the  36th  of  the  king. 

In  order  to  make  an  indictment  for  ei^erof 
these  two  kinds  of  treason  relevant,  it  is  not 
enough  to  say  that  the  party  intended  to  effect, 
or  has  effected  by  force,  the  snbversi<Mi  of  the 
government,  for  that  b  not  necessarily  com- 
passing the  death  of  the  king,  or  levying  war 
against  him.  Though  some  of  the  acts  pei^ 
formed  in  subverting  the  government  might  be 
overt  acts  of  treason,  they  are  not  necenarily 
so. 

In  order  to  establish  the  first  kind  of  treason^ 
two  things  are  necessaiy.  You  must  have  at 
wicked  imagination  in  the  mind,  namely,  tha 
compassing  of  the  king's  death ;  and  you  must 
have  overt  acts,  which  the  law  considers  as 
nroof  sufficient  to  establish  that  imagination. 
But  it  is  not  laid  here  that  the  oath  bound  those 
who  took  it  to  compass  or  imagine  the  death 
of  the  king.  I  cannot  illustrate  my  argtimoBt 
as  it  applies  to  the  case  before  you,  better  thanr 
by  appealing  to  an  extreme  case,  with  which  yoa 
are  aliwellacquainted-^die  trials  of theregiodes 
in  the  1 7th  century.  Yon  will  recollect  1km  the 
indictments  were  there  laid  ^*  for  compaldng 
and  imagining  the  death  of  the  king  f*  and  the 
overt  act  of  Siat  treason  was  cutting  off  the 
head  of  the  king.  It  would  not  Imve  been 
relevant  to  have  merely  charged  the  act  of 
putting  the  king  to  de^tb,  as  the  crime  of 
treason— the  crime  consisted  in  the  imagiiMtion 
of  the  heart ;  the  death  of  the  king  was  the 
evidence  that  that  imagination  existed.  In  the 
same  manner,  the  subversion  of  tilie  laws  and 
constitution  of  the  kingdom  is  not  treason^ 
tfiougfa  it  is  probable  in  effecting  that  subvert 
non  overt  acts  maybe  coBUQittod|irhidk  iihid 
evidtnoeoftieasoab 


fir  AJmHuUrimg  mdiHofii  Oatkt' 


1611 

TIm  oUier  tpeciat  of  treason  which  I 

tkmed,  was  levying  wv  againit  the  king.    To 

ooDstitale  that  ciimey  the  use  of  phytic^  force 

in  the  snhvenioo  of  the  laws  or  ooDStitutioo  of 

the  kiagdoiD  is  not  sufficient.     Ohe  of  two 

things  is  neoessaiy;  either,  on  theone  hand,  the 

perMOS  vsing  th^  force  most  be  assembled  in 

we  gnise  of  wajy   as  it  is  expressed  in  the 

Nonnan  jargon  of  the  law,  mrkUi  mgdtrgmrrmo ; 

they  most  proceed  sub  speck  beUiy  amie4  with 

warlike  engines,  with  ooloots  displayed,  and 

to  the  sonnd  of  tnunpets  and  drums :  or,  on 

Ihe  other  hand,  there  anst  be  so  great  a  mul^ 

titnde  assembled,  that  their  nnmben  may  €on»- 

pcnsate  for  the  want  oC  the  pride,  pomp,  and 

dicnastanceofwar.  Certain  pmons  assembling 

together  and  proeecoting  an  illegal  oljeotby 

mo^ does  not  nfecessazily  oonstitutealevyingof 

war  agahist  the  king, — unless  it  have  the  chano- 

teristics  •  I  ha:Te  mentioned,  it  is  not  treason. 

I  am  unwilling  to  detain  you  in  k  case  of  this 

kind  by  quoting  authorities  on  the  subject.    I 

coold  quote  a  great  many,  but  I  shall  content 

myself  with  referring  you  to  Hale  and  Foster, 

in  their  dmpteis  on  Uiis  subject. 

There  is  a  third  treason,  that  of  conspiring 
to  levy  war  in  order  to  accomplish  certain  ob- 
jectsy  as  to  put  the  king  under  restraint,  to  in- 
timidate partiament,  or  force  the  pariiament  te 
enact  certaia  laws.  This  treason  was  intro* 
dnoed  hj  the  d6th  of  the  king,  e.  7.* 

I  ask,  then,  whether  this  oath,  gmating  that 


A.  D.  1817. 


Il6ft 


TOfriott  aceompUshed  by  foree ;  yet  no  lawyer 
will  maintain  that  this  is  a  case  of  high  trea- 
son ,  that  it  is  a  case  of  compassing  the  king's 
death,  or  of  levying  war  against  him,  or  of 
conspiring  to  levy  war. 
1  repeat,  then,  that  although  this  oath  did 

Surport  what  the  pubhc  prosecutor  says  it 
oes,  but  which  most  ceruiuly  it  does  not, 
still  it  would  not  support  the  charge  in  the 
major  proposition.  If  the  prisoner  was  ac- 
cused of  having  subverted  the  constitution  by 
force,  could  that  charge  go  to  trial  as  a  charge  of 
high  treason?  assursdly  it  could  not;  and  for  the 
same  reason  a  charge  of  having  administered 
an  oath  purporting  to  bind  the  taker  to  sub- 
vert the  constitution  by  force,  is  not  a  charge 
of  having  administered  an  oath  binding  him  to 
commit  treason. 

I  haTenow^Bonsideredthe  oath  as  ** purport 
tag"  to  bind.  That  word,  as  I  have  endea- 
Toured  to  explain  it,  and  I  trust  I  have 
sonndiv  explained  it,  implies  nothing  more 
than  the  meaning  of  the  oath  as  it  may  be 
gathered  from  the  words  set  forth.  But  then 
the  public  prosecutor  says  that  this  oath  pur- 
ported, or  mUmkd;  and  the  question  comes  to 
oe.  Does  the  use  of  the  word  itUend  make  any 
differenced  I  apprehend  it  does  not;  for  the 
mtembnesii  of  a  writing  or  speech  in  the  or- 
dinary case  is  just  the  same  thing  as  its  pur- 
port.  You  will  observe  the  Act  of  Parliament 
does  not  say,  if  the  person  administering  the 


it  pwpovta  what  the  prosecutor  affirms  it  pur^^  "baUi  intends  to  bind  to  the  commission  of 


poffta^  iwposet  an  obligation  to  oemmlt  any 
one  «f  these  three  distinct  species  of  treason? 
I  have  sdfcady  stated  the  reasons,  by  which 
jom  lordships  mast  be  convinced  diat  it  does 
not  bind  the  taker  to  compass  or  imagine  the 
death  of  the  king.  Just  as  little  does  it  bind 
him  to  levy  war  against  the  king,  or  to  con- 
spise  to  levy  war  against  htm. 

I  have  said  'that  force  may  be  used,  nay, 
saeeessMly  used,  to  subvert  the  constitution, 
and  yet  no  war  be  levied  against  the  king. 
I  shall  give  an  instance  of  this,  which  appears 
to  me  dedri^e  on  the  merits  of  the  present 
qneetioiK  Suppose  dmt  the  House  of  Lords 
(which  of  course  they  never  will  do)  should 
pass  a  IhU  to  abolish  the  House  of  Commons, 
or  their  own  House,  as  a  branch  of  the  XjOgisla- 
ture  (and  if  ouch  bill  passed  into  a  law,  it 
would  eflhet  the  complete  sabversion  of  the 
coMstitution);  Suppose,  in  the  next  place, 
that  this  bill,  vrhen  carried  to  the  House  of 
Comnront,  ^ould  diyide  the  House  equally, 
and  of  eonsequence  its  fete  shoald  depend  on 
the  easting  vote  of  the  Speaker.  In  those 
cntuBslaiices,  if  twenty  or  thirty  individuals, 
not  armed  modoguerrmOf  but  widi  stidu  in 
their  hands,  shoald  go  down  and  compel  the 
Sjpedcer  by  threats  or  violence  to  vote  tor  this 
fadl, — ^dbe  bill  having  afterwards  received  the 
rmT  assent,  would  operate  as  the  subversion 
of  the  constitution,  and  it  vMmld  be  a  snb- 


*  Hade  perpetual 
c.  6. 

VOL.  xxxni. 


by  Stet.  57  Cieo.  3rd 


treason,  that  his  intention  shall  infer  the  crime. 
This  is  not  the  meaning  of  the  statute;  for  it 
requires,  that  there  shall  be  on  oath  or  engage" 
useiU  '< intending"  to  bmdf  &c.  It  is  the 
intendment  of  me  oath,  not  of  the  peraon, 
whidi  the  statute  mentions;  and,  thererore, 
though  it  were  perfectly  dear  that  the  prisoner 
administered  this  oath,  and  that  it  was  his 
intention  to  bind  the  party  taking  it  to  com- 
mit treason,  yet  that  is  not  enough,  if  the  oath 
itself  do  not  bind  to  that  effect.  Now,  that 
oamot  be  inferred  from  the  words  of  the  oath  ; 
for  if  you  interpret  them  fairly,  thev  mean 
nothing  but  what  i%  or  at  least  may  be,  per 
feetly  innocent 

But  then,  peihaps,  vre  shall  be  told  that  the 
public  prosecutor  vrill  prove,  by  facts  and  dr- 
cumstanees,  that  the  intendment  of  the  oath  is 
dillhrsat  from  the  purport;  and  it  occurred  to 
me,  that  he  has  some  such  idea>  from  tlie  dr- 
cumstance  that  he  has  dravm  the  narrative  of 
his  minor  proposition  in  the  way  in  which  he 
has.  I  have  various  objections  to  this  view  of 
the  subject,  to  which  I  must  call  your  parti- 
cular attention. 

in  the  Arst  plaOe  yon  will  observe,  that  in 
the  libel  itself  the  prosecutor  gives  up  the 
diar^  of  M/aid^g,  and  relies  on  that  of  ovr- 
portmg  altogether ;  for  in  the  clotw  of  the  libel 
(where,  though  the  same  detail  is  not  necessary, 
yet  the  efine  must  be  set  forth  with  the  same 
criticd  accuracy)  he  says,  '*At  least,  times  and 
pllices  foresaid,  the  said  oath  or  engagement^ 
or  an  oa^  or  engagement  to  the  eame  purport^ 

M 


1681 


57  GEORGE  IIL 


TriiU  of  WUiiam  Edgar 


was-  wickedly^  mBlickNuily,  and  trntofoarij 
admimsieredy  or  caused  to  be  adnunistered/' 
<cc.  He  does  not  say  it  was  an  oath  to  .the 
aanoe  intent;  and  Iherefovai  unleas  he  esta- 
blishes that  an  oath  of  this  purport  was  admi<- 
nistetedy  he  does  nothing  at  all.  But  this  is 
not  the  objection  on  mrhich  I  chiefly  rely. 

It  is  an  established  principle  in  the  law  of 
Scotland,  that  the  minor  proposition  shall  be 
laid  specifically^  and  that  every  materiid  cir- 
cumstance shall  there  be  stated  which  is  to  be 
made  the  subject  of  proof  against  the  pri- 
soner. The  prosecutor  is  not  at  liberty  to 
make  out  the  intendment  of  this  oath  m>m 
fects^and  circumstances  to  which  he  only 
alludes,  in  a  vague  manner  ;  the  libel  is  defec- 
tive unkss  these  facts  and  circmnstances  are 
distinctly  specified.  Would  it  be  sufficient  in 
an  indictment  under  this  statute  to  say,  that 
the  prisoner,  at  the  times  and  places  mentionedi 
administered  the  oath  of  allegiance,  but  under 
cover  of  that  oath  he  intended  to  bind  the 
party  to  commit  certain  crimes  ?  No.  It 
would  be  necessary  for  the  prosecutor  to  set 
forth  what  were  the  focts  and  circumstances 
which  established  the  criminal  quality.  In  a 
trial  for  a  calumnious  or  seditious  libel«  would 
it  be  enough  to  specify  that  the  prisoner  re;- 
peated  the  first  stanza  of  Chevy  Chase,  without 
specifying  bow  it  happened  that  words  having 
a  natural,  obvious,  and  innocent  meaning, 
were  in  reality  directed  to  a  totally  different 
and  criminal  object?  The  prosecutor  must 
set  forth  the  facts  and  circumstances  from 
which  he  draws  his  inference,  otherwise  the 
indictment  is  not  laid  with  that  minuteness 
which  the  law  requires.  But  your  lordships 
win  observe,  that  no  fact  is  here  specified 
from  which  such  an  inference  can  be  deduced. 
It  is  stated  in  the  narrative,  that  the  prisoner 
''having  wickedly,  maliciously,  and  traitor- 
ously conspired  and  agreed  with  other  evil 
disposed  persons  to  break  and  dbturb  the 
public  peace,  to  change,  subvert,  and  over- 
throw tne  government,  and  to  excite,  move, 
and  raise  insurrection  and  rebellion,  and  espe- 
cially to  hold  and  attend  secret  meetings^  for 
the  purpose  of  obtaining  annual  Parliaments 
and  universal  suffrage,  did  then  and  there 
wickedly,  maliciously,  and  traitorously  admi- 
nister, or  cause  to  be  administered,  or  did 
aid  and  assist  in  4he  administering,  to  a  great 
number  of  persons,  an  oath  or  engagement, 
or  an  obligation  in  the  form  of  an  oadi,''  &c. 
In  the  first  place  I  say,  that  supposing  the 
prisoner  committed  all  these  crimes,  it  is  no 
necessary  inference  from  that  hypothesis  that 
be  intended  to  administer  an  umawful  oath. 
Thev  do  not  create  the  smallest  presumption 
to  that  effect ;  for  a  man  may  be  engaged  in 
treason  himself,  and  yet  have  no  intention  to 
impose  an  oath  binding  his  associate  to  commit 
treason. 

But  there  is  another  view  of  the  case.  Sup- 
posing it  competent  from  facts  and  circum- 
stances to  prove  that  an  oath  which  does  not 
purport  any  obligation  of  the  nature  libelled, 


(164 

was  nevertheless  intendad  by  the  parties  to 
impose  that  obligation,  yet.  the  tacjts  an4 
ciicumstanoes  hero  resorted  to  are  of  a  kind 
which  precludes  the  prosecutor  from  making 
use  of  them  for  that  purpose.  .  If  the  nana* 
tive  of  this  indictment  were  to  be  proved,  it 
would  infer  that  the  prisoner  had  commilied 
treason;  but. will  your  lordshfps  permit  the 
lord  advocate  to  prove  that  a.  man  has  been 
guilty  of  treason  in  order  to  convict  him  of 
a  felony.  I  submit  that  this  is  manifestly  in- 
competent. It  is  a  general  role  in  criminal 
law,  and  ia  so  laid  down  by  Mr.  Bumet  in  his 
work  upon  that  subject  (p.  611).  His  lath 
canon  u})on  evidence  is  in  these  wocds: 
"One  cnme  cannot  be  proved  by  evid«n^  as 
to  another.  |  If  A  be  charged  with  three  .acts 
of  theft,  a  proof  of  tvro  of  them  cannot  be 
offered  in  evidence  of  his  guilt  as  to  the 
third.''  Your  lordships  will  see  at  once  the 
principle  upon  whi^h  this  rule  is  founded,  and 
indeea  it  is  afterwards  stated  by  the  learned 
author  whom  I  have  just  quoted.  He  say^ 
^Mt  is  to  avoid  the  risk  of  a  jury  being  influ- 
enced by  the  proof  of  one  crime  in  judging  of 
the  proof  of  another."  It  would  be  most  £m* 
gerous  to  the  subjects  of  this  country  were  it 
held,  that  because  a  man  had  perpetrated  one 
crime  of  which  he  was  not  accused,  the  jury 
might  conclude  that  he  had  perpetrated  ano* 
ther  of  which  he  was  accused.  This  may 
perhaps  be  a  moral,  but  it  is  no  legal  ground 
of  interence.  If  I  know  that  my  servant  has 
stolen  an  article  from  me  on  one  day, 'and  if 
another  is  missed  the  day  following,  I  ^  may 
very  naturally  conclude  that  he  who  stole  the 
first  stole  the  second  also.  But  if  the  servant 
was  tried  for  the  second  theft  aloncr  your 
lordships  assuredly  would  not  allow  the  pra^* 
secutor  to  go  into  evidence  of  the  first.  It 
could  answer  no  purpose,  but  the  improper 
purpose  of  creating  a  pr^udica  in  the  mind 
of  the  jury.  It  is  therefore  a  salutary  and 
expedient  rule,  and  a  rule  which  I  trust  will 
always  be  receiv^,  that  one  crime  cannot  be 
proved  in  order  to  establish  another.  As  the 
prisoner  therefore  is  charged  with  having  ad« 
ministered  an  unlawful  oath,  and  as  for  that 
crime  and  for  no  other  a  conviction  is  de- 
manded, the  prosecutor  cannot  be  allowed  to 
prove  in.  support  of  that  charge,  that  he  cgm- 
mitted  another  crime,  namely  that  of  treason. 
Nothing  could  be  more  unmir  or  more  con- 
trary to  the  principles  of  criminal  law. 

Inaccurate  opinions  have  sometimes  been 
received  on  this  subject.  I  have  used  the  ar-« 
gument  myself,  that  every  thing  is  evidence 
which  tends  to  produce  belief  in  the  minds  of 
the  jury.  That  is  not  the  law  of  Scotland  or 
of  any  civilised  'country.  The  law  judges 
what  should  be  allowed  to  produce  belief  in 
the  jury,  and,  for  the  reasons  which  have  just 
been  assigned,  it  will  not  allow  evidence  of 
one  crime  to  be  used  as  evidence  of  another. 
Though  the  prisoner  was  convicted  of  being  a 
traitor,  the  highest  crime  which  can  be  com- 
mitted in  any  state,  that  circumstance  could 


jesi 


Jor  AdmbmUrtHg  uiiiawfkt  Oaths. 


A.  D.  I&17. 


Ll6d 


not  hm  penutted  to  have  the  towdlest  influ- 
ence  in  convicting  him  of  a  lesser '  offence 
not  supported  by  evidence  applicable  to  itself. 

There  is  another  leason  why  the  narratiTe  of 
die  minor  proposition  cannot  be  competently 
sent  to  proof,  k  is  there  stated  that*  the  pri- 
soner vras  engaged  in  a  treasonable  conspiracy, 
hot  it  is  not  stated  with  whom  he  was  engaged 
in  that  oODspiracy.  Nay,  it  is  not  sUted  that 
the  other  conspiiators  were  persons  to  the  pro« 
secQtor  unknown*  Even  upon  the  suppositiooi 
therelbrey  liiat  this  charge  nad  been  laid  in  the 
major,  vriiich  it  is  not,  it  could  not  be  sent  to 
proo^  because  the  prosecutor  has  not  given  that 
nfecmstion  with  regard  to  it,  which  according 
to  the  forms  of  die  law  of  Scotland  he  was  bound 
lo  give,  that  the  prisoner  might  be  enabled  to 
prepare  his  defcnace.  Where  a  conspiracy  is 
chaiged  against  an  individual,  the  other  persons 
€onspirii%  'most  be  specified,  or  at  least  it 
most  be  stated^  that  those  persons  are  unknovm 
to  dw  prosecutor;  if  eren  that  is  sufficient. 

If  that  remark  is  applicable  to  the  charge  of 
coDSptTUcy,  how  mucn  more  so  is  it  to  that  of 
treason  T  To  oonvict.a  person  of  treason,  many 
requisites  most  occur  which  are  not  found  here. 
No  man  can  be  put  upon  trial  for  that  crime 
unless  a  bill  is  found  against  him  by  a  Grand 
jury ;  and  after  the  bill  is  foond,  man^  forms 
must  be  observed  unknown  to  the  criminal  law 
of  Scotland  in  other  cases.  For  example,  the 
prisoner  is  entitled  to  challenge  a  certain  num* 
ber  of  his  jury  peremptorily,  and  without  cause 
Aevm.  He  has  various  other  privileges  unne* 
cessaryie  be'  stated.  -  But  none  of  these  pri- 
vileges have  been  allowed  to  the  prisoner  here, 
because  he  is  put  upon  bis  trial  for  a  felony.  It 
is  impossible  that  your  Lordships  will  allovr 
lum  to  be  tried  for  treason  by  our  forms  of 
procedure,  when  it  is  enacted,  by  special 
statute^  that  treason  can  only  be  tried  by  the 
IbrmS  of  the  law  of  £ngland. 

It  is  no  answer  to  this  argument,  for  the  pro- 
secutor to  say,  we  are  going  to  try  the  prisoner 
for  treason,  bat  we  are  not  to  punish  him  for 
treason.  We'Ssk  for  no  other  punishment  but 
that  which  is  applicable  to  the  crime  laid  in  the 
mgor  propositMu  of  the  indictment.  If  the  ju- 
ry find  the  prisoner  guilty  of  treason,  though 
lie  escape  the  punishment,  his  character  is  blast- 
ed, be  is  a  convicted  traitor,  and  he  suffers  an 
injury  vrfaich  the  prosecutor  is  not  entitled  to 
inflict.  On  the  other  hand,  suppose  him  to  be 
acquitted  under  this  indictment,  the  acquittal 
is  of  no*  benefit  to  him,  for  not  only  might  his 
diaracter  be  ruined,  but  he  may  be  again 
btoufht  to  trial  for  treason  in  a  regular  way. 

I4>rd  Advocate, — ^He  cannot  be  again  brought 
totiial* 

Mr.  €>fmn$tam. — ^The  lord  advocate  thinks 
diflbentiv  from  me^  but  be  is  wrong.  '  If  the 
pfisoiier  be  acquitted  of  administering  the  un- 
lawful oalh,  that  act  cannot  be  laid  as  an  overt 
act  of  tseaeott  in  an  indictment  for  that  crime. 
Bsi^'ltefie  tnasbnable  practices  are  stated  for 
dir{Pttrpofe4>f  prons^^that  the  oath  admini- 


stered imposed  an  obligation  to  commit  treason. 
Now  the 'lord  advocate  cannot  be  prevented 
from  trying  the  prisoner  for  thesie  practices  as 
treason,  dthough  the  prisoner  shouM  be  ac- 
quitted of  the  present  charge.  The  words  of 
die  act  are  '^rronded  also,  and  it  is  hereby 
declared,  that  any  person  who  shall  be  tried 
and  acquitted,  or  convicted  of  any  offence 
against  this  act,  shall  not  be  liable  to  be  indict- 
ed, prosecuted,  or  tried  again  for  the  $ame  offence 
or  fid  as  hig^  treason  or  misprision  of  high  trea- 
son." 

From  these  words  it  appears,  that  after  a 
trial  on  this  indictment  die  prisoner  cannot  be 
tried  for  treason  on  the  ground  of  having  admi- 
nistered this  oath,  but  1^  may  notwithstanding 
be  tried  for  treason  on  account  of  any  one  of 
the  acts  which  his  lordship  narrates  in  the  mi- 
nor proposition,  as  evidence  that  the  prisoner 
and  nis  associates  were  engaged  in  treasonable 
practices. 

This  being  the  case,  what  would  be  the  result 
of  a  trial  under  this  indictment,  supposing 
that  the  prisoner  is  acquitted  P  It  would  be 
just  a  precognition,  and'what  is  more,  a  public 
precognition  taken,  for  the  purpose  of  convict- 
ing him  afterwards  of  high  treason.  And  as 
he  might  be  tried  twenty  times  for  administer- 
ing unlawful  oaths,  all  these  trials  might  be 
vrith  no  other  view  than  that  of  trying  lum  for 
hi^  treason  at  last.  I  put  it  to  your  lord- 
ships,^ if  o'ppression  of  this  kind  could  be 
endured  in  this  country,— if  there  would  not  be 
an  end  of  all  liberty  and  all  security? 

I  lay  it  downltherefore  as  dear  law,  that  one 
crime  cannot  be  used  as  proof  of  another. 
There  is  nothing  set  forth  in  this  libel  in  order 
to  prove  the  wtent  of  the  oath  as  contradistin- 
suished  from  itsptirporl,  except  facts  which  in- 
fer other  crimes,  and  which,  on  that  account, 
cannot  be  admitted  to  proof.  The  whole  nar- 
rative of  the  minor  proposition  must  be  blotted 
out  as  incompetent,  and  that  being  done  thera 
is  notfaingleft  but  the  words  of  the  oath,  and  these 
words  do  not  purport  any  obligation  to  commit 
treason.  The  prosecutor  may  aver  the  contrary  ' 
— he  may  say,  that  whatever  may  be  the  appa- 
rent purport,  thereat  intendment  was  an  unlaw- 
ful ooUgation :  but  if  he  makes  this  averment 
something  further  is  necessary ;  he  must  state 
specifically  the  facts  and  circumstances  by 
which  he  is  to  prove,  that  words,  innocent  ia 
themselves,  were  used  with  a  guilty  intent ; 
and  these  fiicts  and  circumstances  must  be 
relevant  to  ground  that-  inference,  and  com- 
petent in  themselves  to  be  proved.  Further, 
as  already  said,  it  is  not  the  intention  of  the 
parties,  but  the  intendment  of  the  words  which 
must  be  criminal. 

But  if  the  nanradve  of  the  minor  proposi- 
tion be  strode  out,  and  I  have  shovni  that  it 
must  be  so,  then  there  is  no  specification  of 
&cts  vvhatever  to  establish  an  intendment 
different  from  the  purport  (^  the  oath.  What 
s^ificadon  is  necessary  in  the  minor  proposi- 
tion of  a  criminal  indictment  according  to  the 
law  of  Scodand?    AU  our  authoriUes  say  that 


167] 


57  GEORGE  III. 


Trial  of  fViitiam  Edgar 


[168 


the  minor  pnmositioa  must  set  forth  a  AiU  and 
accurate  detail  of  all  the  dicumstances  matetial 
to  the  case.  But  if  the  lord  advocate  atten^pts 
to  extract  and  elicit  from  innocent  words  a 
different  meaning  from  that  which  ^y  obvi- 
ously bear,  and  does  not  specifytbe  cutnun- 
stances  from  which  he  infers  that  hidden 
meaning,  then  the  minor  proposition  b  im- 
perfect for  want  of  specification,  and  the  Ubei 
u  irrelevant. 

I  had  formerly  occasion  to  refer  yonr  lord** 
ships  to  the  practice  in  trials  for  perjury :  and 
it  appears  to  me  that  there  is  a  great  affinity 
between  trials  for  that  crime,  and  the  present. 
Perjury  consists  in  taking  an  oath  which  pnr^ 
ports  falsehood :  the  present  eritnie  consists  in 
administering  one  which  purports  an  unlawful 
obligation.  In  both  there  is  the  use  of  an  or- 
dinary solemnity,  with  the  criminal  intention 
in  the  one  case  to  deceive,  and  in  the  other 
case  to  bind  to  the  commission  of  a  crime. 
The  crimes  are  analogous.  In  a  caae  like  the 
present,  which  is  new,  it  is  most  desirable  to 
refer  to  analogous  cases,  in  order  to  gather 
'  what  are  the  rvdes  of  proceeding.  Let  us  con- 
sider then  what  is  your  proceeding  when  vou  try 
a  person  on  a  libel  lor  perjury.  Mr.  Hume, 
in  stating  what  are  the  specifications  necessary 
in  a  libel  for  peijury,  observes,  that  **  it  is 
more  especially  requisite,  that  in  all  process 
for  perjury  the  prosecutor  be  not  allowed  to 
lay  his  libel  generally,  or  in  ambiguous  tenns; 
since  otherwise  he  would  take  the  cognisance 
of  the  relevancy  of  the  charge  to  himself,  out 
of  the  hands  of  the  Court^  to  whom  of  right  it 
belongs.  He  has  to  explain,  therefore,  wherein 
it  is  that  the  falsehood  lies,  and  must  support 
(or  as  we  say,  qtu^)  his  charge  with  such  a 
statement  of  the  circumstances  of  the  £&ct,  as 
justifies  his  averment  of  a  fidse  oath  having 
been  taken,  and  shall  ground  a  clear  inference 
(if  they  be  proved)  concerning  the  situation  of 
the  panel's  conscience  on  the  occasion."  It 
thus  appears,  that  in  a  charge  of  perjury,  in 
order  to  make  the  libel  relevant,  it  is  not 
enough  to  assert  that  the  prisoner  has  sworn  a 
false  oatlu  The  prosecutor  must  point  out  in 
detail  the  circumstances  on  which  he  rests  his 
averment,  that  what  was  sworn  is  £dse.  If  that 
be  the  case  in  a  trial  for  perjury, — in  the  analo- 
gous crime  now  in  question,  if  the  prosecutor 
libels  words  in  themselves  innocent,  he  must 
specify  facts  relevant  and  competent  to  be 
proved,  in  order  to  make  out  the  proposition 
that  these  words  were  used  with  a  guilty  in- 
tendment— an  intendment  understood  by  both 
parties.  Therefore  unless  you  require  a  speci- 
fication of  facts,  which  I  apprehend  is  essenti- 
ally necessary  to  extract  a  guilty  intendment 
from  the  words  of  this  oath,  in  themselves  in- 
nocenlj  you  depart  from  one  of  the  best  es- 
tablished rules  of  the  law  of  Scotland.  What 
is  said  by  Mr.  Hume  as  to  trials  for  |>eijury, 
is  equally  applicable  to  a  trial  under  this  act. 

I  have  sJready  taken  occasion  .to  observe^ 
that  one  of  the  most  vaiuablb  statutes  in  our 
code  is  the  statute  of  Ut  Maxy,  cap.  1.    It  is 


in  our  code,  for  it  b  a  law  regaidmg  treesoo, 
and  of  consequence  introduce  along  with  all 
the  other  laws  of  England  upon  that  subject 
by  the  7th  Anne,  cap.  21.  i  prsY  your  lord- 
ships to  attend  to  the  preamMe  of  tliat  statute 
of  the  1st  Maiy.  **  Forasmuch  as  the  state  ni 
every  king,  nJer,  and  governor  of  any  realm, 
dominion,  or  commonalty,  standeth  and  con- 
sbteth  more  assured  by  the  love  and  frvour  of 
tiie  subjects  toward  their  sovereign  ruler  and 
governor,  than  in  the  dread  and  fear  of  laws 
made  with  rigorous  pains  and  extreme  pnnisb- 
ment  for  not  obeying  of  their  sovereign  ruler 
and  governor :  And  laws  also  justly  made  lor 
the  preservation  of  the  commonweal,  without 
extreme  punbhment  or  great  penalty,  are  more 
often  for  the  most  part  obeyed  and  kept,  than 
laws  and  statutes  made  witii  great  and  ex- 
treme punishments  and  in  special  such  lawa 
and  statutes  so  made,  whereby  not  only 
the  ignorant  and  rude  unlearned  peofde,  bnt 
also  learned  and  expert  people,  mindinK 
honesty,  are  often  and  many  times  tnpped  and 
snared,  yea,  many  times  lor  words  only,  with* 
out  oUier  fiict  or  deed  done  or  perpetrated : 
The  queen's  most  excellent  majesty,  calling  to 
remembrance,  that  many,  as  wdl  hononralile 
and  noble  persons  as  otherof  good  rep«tation» 
within  this  her  grace's  realm  of  England,  have 
of  late  (for  words  only,  withovt  other  opinion, 
foot,  or  deed)  suffered  shameful  death  not  ao* 
customed  to  nobles ;  Her  highness,  therefore, 
of  her  accustomed  clemency  and  mercy,  mind* 
ing  to  avoid  and  put  away  die  occasion  and 
cause  of  like  chances  hereafter  to  ensoe,  trust- 
ing her  loving  subjects  will,  for  her  deniency 
to  them  shewed,  love,  serve,  and  obey  h^ 
grace  the  more  heartily  and  futhfully,  than  for 
dread  or  fear  of  pains  of  body,  b  contented 
and  pleased  that  tne  severity 'Of  such  like  ex- 
treme, dangerous,  and  painful  laws,  shall  be 
abolished,  annulled  and  made  fhistrate  and 
void."  This  preamble  explains  the  extreme 
danger  and  mischief  arising  from  laws  inflict- 
ing the  pains  of  treason  on  offences  whidi  are 
not  accurately  defined^  and  more  particolarij 
for  words  spoken,  and  accordingly  the  whole 
body  of  constructive  treasons  were  swept 
away  by  that  act. 

Now,  the  statute  upon  which  the  present  in- 
dictment b  founded  introduced  a  constructive 
felony,  on  which  it  inflicts  the  same  punish- 
ment as  that  which  is  inflicted  in  treason,  at 
least  in  all  material  respects  the  same.  I  did 
not  read  the  preamble  of  the  act  of  queen 
Mary,  to  throw  blame  on  the  statute  now 
under  consideration,  bnt  to  show  the  difficulty 
and  danger  attending  the  application  of  every 
law  of  this  description,  as  tne  legislature  itself 
has  clearly  expressed  in  that  preamble'.  But 
the  statute  having  been  enacted,  what  b  the 
proper  correcdve  for  the  evib  to  whidk  I 
allude  f  I  do  not  know  what  b  the  prac- 
tice on  the  other  side  the  Tweed;  tot  I 
do.  not  know  the  detaib  of  ciisninal  pn>- 
eedure  there,  bnt  I  know  that  in  Scotland 
the  corrective  is  to  be  fbmid  iaeur  foons  of 


1691 


far  AduuKhUriKg  taUmfiil  Oaths. 


A.  D.  1617. 


iiio 


crunnnlpiooedim;  and  wlatererdefiKti  there 
may- be  in  the  law  of  Scotland^  there  are  aome 
exceUcnciefy  and  one  of  them  is  that  minnte- 
Beaa  of  ^iceification  which  the  public  proeeco- 
toris  boond  to  obeerre  in  his  indictment.  Hie 
nroper  piecaation  for  preventing  this  statute 
Kom  being  made  a  source  of  oppression  and 
iiyostioe^  is  to  observe  oar  forms  of  criminal 
proeedore;  and  I  maintain  that  one  of  our  best 
£mns  will  be  neglected^  if  yon  allow  a  proof  of 
the  minor  proposition  here  to  go  to  a  juiy^ 
when  there  is  no  specification  in  the  hbel  to 
show  tlwt  the  wofds  ef  the  oath  were  nsed  in 
n  sense  different  from  their  ordioary  sense. 
Their  ordiniT  sense  as  I  have  endeavoured  to 
prove,  or  rather  as  I  think  must  be  manifest 
aft  first  sight,  is  perfectly  innocent ;  at  least  it 
is  not  an  obligation  to  comnut  treason.  If  this 
libel  be  allowed  to  go  to  trial  under  other ' 
jndgesy  the  administration  oi  any  oath*  of  the 
oath  of  allegiance  itself  might  be  made  the 
mund  of  a  prosecution  under  this  statute. 
Tbe  author  whom  I  have  already  bad  occasion 
to  qnoce,  says,  that  the  nile  of  the  minor  pro- 
position containing  a  specification  of  all  the 
nets   on  which  the   charge  rests,  was  at- 
tended to  anziooslyy  even  in  the  worst  times. 
We  know  well  whai  are  the  times  to  which  he 
anodes,  indeed  they  are  pointed  out  by  the 
defisinns  to  which  he  refers ;  namely,  the  pe- 
riod between  1679  and  1668,  when  your  books 
of  adioamal  are  stained  with  tbe  most  atroci* 
one  murders  perpetrated  under  the  colosorof 
law-^y  judges  the  most  unprincipled   that 
ever  sat  upon  that  bench.    If  in  that  period, 
and  jnndet  these  judges,  the  rule  in  question 
was  not  departed  from  even  in  the  trial  of 
slate  criuMM^  it  will  not  be  departed  from 
in   these  liberal  and  enligfatenea  days,   and 
while -yonr  lordships  preside  in  tliia  Court. 
On  these  grounds,   I  relate  to  your  lord- 
ships with  confidedce  what  is  the  genuine 
eoBvictJon  of  my  own  mind,  that  this  is  not  a 
relevant  indictment,  and  that  if  it  be  sent  to  a 
jury,  a  precedent  will  be  established  fraught 
with  the  greatest  danger, 

[Mr.  Cranstoun  made  an  apology  for  occu- 
pying the  Court  so  long.] 

Lord  Justice  Clerk. — ^I  express  the  opinion 
of  the  Court,  that  there  Is  no  reason  for  such 
an  apology.  We  have  all  heard  the  very  able, 
eloquent,  and  argumentative  pleading  for  the 
panel,  with  the  most  perfect  satisfaction. 

.  Mr.  Dtmumnd. — ^A  very  difficult  task  has 
devolved  itself  upon  me^  thiat  of  answering  one 
of  the  ablest  arguments  which  I  ever  had  oc- 
casion to  hear ;  and  I  have  this  impression 
so  stronglv  on  m^  mind,  that  unless  I  had 
some-  confidence  m  the  merits  of  the  cause 
whidh  I  am  to  support,  I  should  feel  the 
greatest  diffidence  in  attempting  to  answer  the 
speech  of  the  learned  gentleman.  I  trust, 
however,  that  the  ease  will-  speak  pretty 
Strongly  for  itself;  and  my  learned  friend  who- 
i#.io  foitow  me,  will,  aaich  More  ably  than  I 


can  do,  supply  what  I  may  happen  to  omit. 

The  charge  against  the  panel  at  the  bar  is 
for  a  statutory  offence.  He  is  charged  with 
administering  an  oath  of  a  particular  descrip- 
tion. The  rules  of  law  are  clear  with  regard 
to  the  manner  of  describing  a  criminal  act.  The 
words  of  Mr.  Hume  are,  **  That  a  libel  is  not 
good,  unless  it  give  such  an  account  of  the 
criminal  deed  as  may  distinguish  this  particu- 
lar charge  from  all  other  instances  of  the  same 
sort  of  crime,  and  thus  briuff  the  panel  tb  the 
bar  sufficiently  informed  of  that  whereof  he  is 
accused.^ 

If  this  description  of  the  duty  of  the  prose- 
cutor be  correct,  I  apprehend  this  indictment 
must  dearly  ffo  to  trial;  for  it  sets  forUi  the 
crime  charged  in  a  manner  to  distinguish  it 
from  ev«ry  other  instance  of  the  same  sort  of 
crime.  'Die  criminal  deed  is  the  administer- 
ing ef  the  oath,  and  the  oath  itself  is  set  forth 
in  the  indictment.  £ven  if  it  had  not  been  in 
the  power  of  the  prosecutor  to  obtain  the  terms 
of  the  oath,  yet,  by  this  statute,  it  was  compe- 
tent to  him  to  charge  its  purport.  But  the 
prosecutor  has  fortunately  had  more  in  his 
power,  for  he  has  obtained  the  oath  itself,  and 
he  has  recited  it  at  length  in  the  indictmeqt. 

Mr.  Hume  proceeds  afterwards  to  describe 
the  manner  in  which  the  criminal  deed  should 
be  set  forth ;  and  as  the  learned  gentleman 
who  went  before  me  dwelt  some  time  on  this 
subject,  I  shall  be  under   the   necessity  of 

Suoting  at  length  Jdr.  Hume's  views  of  the 
uty  of  the  prosecutor.  {Mr.  Drummond  here 
read  from  vol.  3,  j[).  325,  and  subsequent  pas- 
sages, and  maintained  that  the  description  of 
the  offence  in  this  indictment  was  sufficiently 
specific] 

I  apprehend  that  the  prosecutor  is  correct 
as  to  the  times  and  places,  and  the  individuals 
to  whom  the  oath  was  administered,  as  no  ob- 
jection has  been  stated  to  the  indictment  with 
regard  to  these  points.  And,  considering  the 
particular  character  of  this  crime  charged,  and 
that  it  is  of  a  secret  nature,  and  extremely 
difficult  to  detect,  I  think  your  lordships  must 
be  satisfied,  that  the  prosecutor  has  given  aa 
foil  and  particular  a  description  of  it  as  the 
panel  could  expect. 

This  is  a  crime,  in  many  respects,  of  a  yery 
peculiar  character.  It  is  necessary,  indeed, 
as  was  correctly  stated  by  the  learned  gentle- 
roan,  that  the  oath  itself  should  bind  to  the 
commission  of  treason,  or  of  some  capital 
felony.  It  is  not  sufficient  that  the  party  ad- 
n^inistering  the  oath,  or  the  party  taking  it, 
should  have  treasonable,  or  other  criminal  in- 
tentions ;  but  it  is  necessary  that  the  oath  itself 
should  b4nd  to  the  commission  of  treason,  or 
some  other  crime.  This  was  most  correctly  laid 
down  by  the  learned  genQeman,  and  any  infer- 
ence which  the  prosecutor  may  think  himself  en- 
titled to  draw  from  the  oath  willnotbe  sufficient, 
i£it  do  not  clearly  appear  that  the  oath  itself  is 
of  the  precise  purport  necessary  to  inculpate  the 

*  3  Comm.  310^ 


171  j         27  GEORGE  III. 

nanel  on  the  lUttute'  fouiKled  upon  in  th^  iih' 
dictment.  On  this  pari  of  die  cate  I  am  ready 
lo  meet  the  learned  eentleman ;  for  it  appean 
to  me  very  clearly  tnat  this  oath  does  contain 
an  obligation  to  commit  treason,  and  that, 
upon  a  rair  construction  of  it,  no  man  of  good 
tense  can  firil  to  be'  of  this  opinion.  The  oath 
fliysy  **  I  win  penefere'  in  my  endeavours  to 
obtain  for  all  the  people  in  Ciieat  Britain  and 
Ireland,  not  disqualified  by  crimes  or  insanity, 
the  elective  franchise,  at  the  age  of  twenty-one, 
with  free  and  equal  representation  and  annual 
pariiaments;  and  that  X  ^Q  support  the  same 
to  the  utmost  of  my  power  either  by  moral  or 

Sysical  strength,  as  the  case  may  require.'' 
le  learned  gentlem'an  stated,  that  the  oath 
binds  the  person '  taking  it  to  support  the  en- 
deavours made  to  obtam  annual  parliaments 
and  universal  suffrage,  and  he  stated  so  cor- 
rectly. He  observe«i  tiiat  the  oeih  could  not 
bind  them  to  support  what  was  not  in  exist- 
ence, and  that  therefore  it  was  to  obtain,  not 
lo  support,  annual  parliaments  and  universal 
suffrage,  things  not  in  existence,  that  the 
oath  had  been  administered  and  taken.  It  re- 
mains for  you  to  consider,  whether  the  oath  to 
support  with  moral  and  physical  strength 
endeavours  made  to  obtain  annual  parfia- 
ments  and  universal  sufVaaiB,  is  an  oath  which 
eobjeets  those  administering  or  taking  it  to 
the  charge  of  administering  or  taking  an 
oath  purporting  to  bind  those  taking  the  same 
to  commit  treason  ?  and  upon  that  narrowed' 
construction  of  the  oath  I  join  issue  with  the 
opposite  counsel. 

It  was  said  verjr  ingeniously,  that  physical 
strength  may  be  mnocently  employed  m  many' 
wavs  for  the  support  of  endeavours  to  obtain 
vnhrersal  suffrage  and  annual  parliaments^- 
that  it  may  be  employed  in  the  erecting  of 
hustings  for  meetings  to  petition  parliament  on 
the  sulnect-— that  it  may  oe  employed  in  run- 
ning about  and  soliciting  members  of  the 
legislature  to  give  their  support  to  such  peti* 
lions.  These  are  certainly  exercises  of  physi- 
cal strength,  but  not  of  the  kind  referred  to  in 
the  oath.  The  oath  binds  the  persons  taking 
it  to  use  aU  their  i^jsical  strength,  as  the  case 
may  require.  The  instances  which  have  been 
mentioned  of  the  application  of  physical 
strength  are  not  the  only  ways  in  which  physical 
strength  may  be  employed  in  order  to  obtain  the 
objects  spoken  of;  yet,  by  the  terms  of  the  oath, 
there  is  no  limitation  as  to  the  kind  of  physical 
strength  which  the  parties  were  to  use.  •  Tliey 
were  to  use  the  whole  of  their  moral  and 
physical  strength;  and  the  terms  force  and 
strength  have  beretlie  same  meaning.  If  an 
innocent  purpose  only  had  been  in  the  view 
of  these  persons,  then  why  were  they  anxious 
for  concealment  ? — What  follows  in  the  oath  ? 
**  And  I  do  further  swear,  that  neither  hopes, 
fears,  rewards,  or  punishments,  diall  induce 
me  to  inform  on,  or  give  evidence  against, 
anv  member  or  members,  collectively  or  indi- 
viaually,  for  any  act  or  expression  done  or 
nude,  in  or  out^  in  (his  or -similar  societies. 


Trial  of  fVWmmEJgar 


cna 


under  the  punishment  of  death,  to  be  inflicted* 
on  me  by  any  member  or  members  of  such 
societies.  So  help  me  God,  and  keep  me 
stedfest.*'  This  is  a  remarkable  part  of  the 
oath,  and  surely  such  concealment  was  not 
necessary  in  erecting  hustings,  or  doing  aAy 
of  the  things  which  were  suggested  by_tbe 
learned  counsel  in  his  illustrations.  There 
can  be  no  use  for  such  concealment,  where 
lawful  means  are  to  be  employed  for  the  attain- 
ment of  lawful  objects.  Every  person  vrfao 
reads  the  oath  must  see  that  it  proves  in  the 
strongest  manner,  that  illegal  objects  were  in 
ti)e  view  of  the  parties.  This  is  obvious,  with- 
out travelling  beyond  the  four  comers  of  the 
oath  itseUl  It  is  so  obvious,  that  no  argument 
can  prevent  the  indictment  from  going  to  trial. 
The  oath  alone,  without  going  to  any  other 
article  of  evidence,  is  directly  crimtoal,  and 
implies  that  the  purpose  for  which  the  meeting 
was  assembled  was  an  illegal  purpose,  and  the 
association  ah  illegal  association. 

It  was  said  by  Uie  learned  gentleman,  that 
the  word  '<  force*'  had  been  ^  artfiiify*'  subeti- 
luted  in  the  indictment  for  the  word  **•  strength.*^ 
Bnt  according  to  my  construction,  they  have 
no  different  meanin^-<-they  are  synonymous.- 
But  I  may  answer  his  statement  bv  a'  remark 
of  his  own  which  is  well  founded,  that  any 
inference  from  the  oath  adjected  in  the  indict- 
ment does  not  signify,  unless  the  oath  itself 
neeemarily  imply  that  inference.  The  artifice, 
therefore,  if  there  bad  been  any  (and  there 
was  assuredly  none),  could  have  no  effect,  as 
your  lordships  are  to  judge  of  the  oath  itself, 
and  not  of  the  oondusionsHlrawn  from  it  by 
the  prosecutor. 

It  is  also  libelled  in  the  indictment  (and  to 
the  proof  of  that  no  objection  has  been  stated), 
that  this  oath  was  administered  at  secret  meet- 
ings. To  a  proof  of  this  averment,  no  object 
tion  has  or  can  be  made ;  and  if  it  shall  be 
proved  that  this  oath  was  administered  at  a 
secret  meeting,  this  is  an  additional  circum- 
stance of  evidence  whidi  must  go  to  the  assise, 
to  show  that  the  purpose  of  the  oath'  was 
illegal  and  criminal.  That  the  oath  was  ad- 
ministered at  a  secret  meeting  is  charged,  I 
observe,  with  regard  to  the  meeting  first 
libelled  on  in  the  indictment. 

It  is  argued,  that  the  narrative  of  the  indict- 
mentr— the  general  statement  of  treasonable 
conduct  which  precedes  the  statement  of  the 
particulars  founded  on^is  not  relevant  to  be 
proved.  I  apprehend,  however,  that  many 
examples  mint  be  given  from  the  daily  prac- 
tice of  the  uourt'of  such  narratives  as  this 
going  to  a  jury.  One  example  that  occurs  to 
me--H(I  am  sorry  that  I  am  under  the  necessity 
of  speaking  from  memory  alone,  as  I  am  cer- 
tain that  it  I '  had  had  timeto  make  an  investi- 
gation, I  could  have  produced  many  examples 
on  the  point)— an  example,  I  say,  occurs  to 
me,*  which  is  probably  in  your  recoHection. 
The  cise  I  allude  to  vras  that  of  a  charge  for 
uttering  ^rged  notes.  The  forgery  bad  been 
committed  ia  Englebd  ;-^that  qrifli^  therefoie. 


173  J 


Jar  Aimimleri»g  vAt^  OaOs. 


A.  D.  1817. 


1174 


tbe  Court  had  no  joiisdlction  to  tiy.    Yet  yon 
tilmitted  the  statement  of  the  forgery  in  the 
narrative  of  the  indictment  m  modam  proialiom$ 
oCthe  dine. of  uttering  the  forged  notes  in 
Scotland,  and  as  relevant  to  infer  the  know- 
ledge of  the  forgery  in  the  ntterer.    This  is 
setUad  lair;  and  the  oath  here  charged  is  at 
least  as  intimately  connected  with  the .  state- 
ment of  treasonable  practices  mentioned  in  the 
narrattye^  as  the  crime  of  nttering  forged  notes 
was  with  the  perpetration  of  the  forgery!    I 
am  not  going  too  far  in  saying  that  the  oath 
is  nothing  ebe  than  an  OTert  act  of  a  general 
treasrmable    conspiracy,    opt  now  charged 
against  the  parties.    The  whole  import  and 
constraction  of  the  present  charge^  indeed,  in- 
volves the  existence  of  another  crime.    The 
administration  of  the  oath  is  a  criminal  act, 
binding  the  takers  to  ciu9»iC  .aoptl^ar  cdme ; 
and  how  is  it  possible  to  separate,  the  two? 
How  can  any  circomstanceii  regarding  the  one 
be  eKplained  without  mentioning  the  other  P 
We  are  bound  to  show  that  there  was  treason 
which  would  have  been  speedily  matured,  if 
the  purposes  of  the  persons  who  administmd 
and  who  took  the  oath  had  been  carried  into 
effect.     We  are  to  prove  what  they   were 
hatdiiiig— what  they  intended— nand  it  is  im- 
possible  to  lay  out  of  .view  the  preparations 
they  were  making  for.  committing  treason,  in 
^caking,  of  what  they  bound  themselves  to 
aocompUsh.    Thus  the  rule  of  not  admitting 
proof  of  one  crime  in  evidence  of  another, 
must  be  received  with  some  qualification,  .and 
it  btf  always  been  so  in  practice.    [Mr .  Drum- 
nond  here  referred  to  Hume's  Com.  vol.  3. 
p.  411,  and. to  the  case  of  Thomas  Somerville, 
who  ^as  tried  for  perjury  in  1813,  as  men- 
tioned in  the  corresponding  part  of  the  supple- 
ment, p.  2^6.]    There,  you  have  (evidence  of 
one  crime  admitted  to.prove  another,  although 
the  one  was  quite  different  from. Uie  other. 
But  here  the  crimes  are  intimately  and  almoet 
ittseinrably  connected.    It  is  an  established 
rale  in  the  English  law  books,  in  cases  of  trea- 
son, not  only  that  one  overt  act  not  laid  as  a 
charge,  may  be  adduced  as  proof  of  one  that 
is  laid,  but  that  a  general  proof  of  rebellion  or 
conspiracy  is  allowed  before  proceeding  to  the 
particular  acts  charged ;  and  the  well  known 
case  of  Strafford*  was  quoted  and  received  as 
an  authority  on  this  point  in  the  trials  of  Wattf 
and  Downle,t — ^in  which  the  existence  of  a 
treasonable  plot  was  allowed  to  be  proved  be- 
fore the  overt  acts  charged.    Hie  principal 
3uestion  is,  whether,  the  matter  offered  in  evi- 
ence.be  pertinent  to  the  point  in  issue  f 
It  was  said  that  we  are  not  entitled  to  try 
a.  man  for  treason  in  this  form,  and  that  there- 
fore we  cannot  indirectly  try  the  treason  as 
pioo(oCaift>ther  crime.  *  I  appeal,  in  answer 
to  this,-  to  the  act  of  parlian^nt  under  which 
we  are  now  proceeding.    The  whole  act,  and 


<   »■ 


♦  3  How.  St.  Tr.  1381. 

t  2  How.  Mod.  St.  Tr.  1167. 

I  8How.  Mod.  StTr.  1. 


particttlaily  the  last  daose,.  piooteds  on  the 
understanaing  that  we  are  entitled  to  go  on  as 
we  are  doing  in  this  trial,  althoogh  the  crime 
tried  be  treason.  .      < 

^  Provided  also^  and  it  is  hereby  dedared, 
that  any  person  who  shall  be  tried  and  ao- 
quitted,  or  convicted  of  any  offence  against 
tfiis  act,  shall  not  be  •  liable  to  be  indicted 
prosecuted,  or  tried  again  for.  the  same  offence 
or  fact,  as  high  treason,  or ,  misprision  of  high 
treason ;  and  that  nothing  in  this  act  contained 
i  shall  be  construed  to  extend  to  prohibit  any 
'  person  guilty  of  any  offence  against  this  act, 
and  who  shall  not  be  tried  for  tiie  same  as  an 
offence  against  this  act,  from  being  tried  for 
the  same  as  high  treason,  or  misprision  of  high 
treason,  in  sudi  manner  as  if  this  act  had  not 
beeu  ntadeh" 

Even  iflhiseet  had  aever  existad,  I  shonid 
have  been  prepared  to  maintain,  on  the  or- 
dinary rule^  of  law,  the  competency  of  trying 
under  a  lower  denomination  of  crime :  what 
might  have  been  tried  as  treason  but  the  dause 
now  quoted  is  quite  conclusive.  There  is, 
therefore,  nothing  in  the  ciroumstanoe  that  the 
criminal  proceedings  set  forth  in  the-  iiarrative 
of  the  indictment  happen  to  be  of  a  treasonable 
nature,  that  can  make  any  difference  in  the 
case ;  and  I  submit,  that  as  they  form  part  of 
the  res  gata  at  the  time  of  administering  the 
oath,  and,  naturally  enter  into  the  history  of 
the  transaction,  they  ought  to  be  admitted  to 

{>roof,  and  found  relevant  with  the  rest  of  the 
ibel.  The^  are  intimately  and  inseparablT 
coi^iected  with  the  proof  of  the  crime  cnar|;ed, 
and  afford  the  clearest  and  most  relevant  mii» 
da  than  can  be  imagined  of  the  guilty  purpose 
of  the  panel.  It  seems  unnecessary  to  add 
that  if  it  be  relevant  to  introduce  this  statement 
narraiivif  the  same  specification  is  not  requisite 
as  if  it  had  been  made  the  "subject  of  a  sub- 
stantive charge ;  and  I  should  not  have  made 
this  remark  at  all,  unless  there  had  appeared  a 
disposition  to  argue  upon  this  narrative,  as  if 
the  relevancy  of  it  were  to  be  tried  by  the 
same  rules  as  a  charge  in  the  indictment.  .  . 
It  was  said  by  the  learned  gentleman,  that, 
the  particulars  charged  as  what  the  parties 
bound  themselves  to  commit,  would  not  have 
amounted  to  high  treason  even  if  they  had 
been  carried  into  effect.  But  how  it  can  be 
maintained  that  the  employment  of  force  to 
accomplish  public  measures  of  this  description 
is  not  treason,  I  cannot  conceive.  It  appears 
to  me  to  be  beyond  the  ingenuity  of  even  the 
learned  gentleman  himself,  to  persuade  any 
person,  that,  a  public  measure  of  any  sort  may 
DO  accomplished,  not  to  say  the  fundamental 
principles  of  the  constitution  subverted  by 
force,  by  a  number  of  persons  conspiring  to« 
getherfor  that  purpose  without  levying  war 
agaist  the  king.  According  to  my  view  of. 
the  law,  I  might  have  been  entitled  to  charge 
the  administration  of  the  oath  itself  as  h«h^ 
treason.  The  wor^s.of  the  statute  36  G.  ifl^ 
c.  7.  seem  completely  in  point,  as  tq  the  trea-; 
sonable  nature  of  the  association  and  the  oath.. 


174] 


57  GEORGE  III. 


Trial  of  WaUam  E^ar 


1176 


^  tf  asy  person  or  penonn,  fcc.  shall  obmpttsSy 
,  imagine,  meat,  dernse,  or  intend  deam  or 
destraottbnj^  See.  kc*  or  to  deprive  or  depose 
him,  &c.  or  to  levy  war  against  his  Majestj, 
in  order,  by  force  or  constraint,  to  compel  him 
to  change  his  measures  or  counsels,  or  in  order 
fo  put  any  force  or  constraint  upon,  or  to  in- 
timidate or  overawe  both  Houses,  or  either 
House  of  Pariiament-«--4UDd  suoh  compas* 
sings,  imaginations,  tnTentions,  devices  or  in^ 
tentions,  or  any  of  them  shall  express,  titter,  or 
declare,  by  publishing  any  printmg  or  wnting, 
or  by  any  overt'  act  or  deed^"-  £vea  under 
the  first  head  of  the  statute  of  Sdward  III. 
it  might  have  been  maintained  to  be  treason 
to  conspire  for  the  <cttainment  of  universal 
anffirage  and  annual  Parliaments  by  foroe;  and 
the  oath  and  secret  meeting  might  have  been 
given  in  evidence  as  overt  acts. 

But  it  is  unnecessary  to  enter  upon  the 
question,  whether  the  acts  libelled  as  having 
been  done,  might  have  justified  a  charge  of 
treason.  It  is  «iough  for  the  present  purpose 
to  say,  that  if  the  force  which  the  parties  bound 
themselves  bj  this  oath  to  use,  for  obtaining 
annual  parliaments  and  universal  suflVage,  had 
been  actually  employed  for  those  purposes 
.  (which  are  not  only  of  a  public  nature,  but 
utterly  subversive  of  the  whole  frame  of  the 
constitution)  this  would  clearly  have  been  that 
species  of  treason  which  consists  in  levying 
war  against  the  king. 

It  vras  said,  that  the  coneluding  part  of  the 
indictment  does  not  correspond  with  what 
goes  before,  as  the  charge  of  intending  is  omit- 
ted, and  that  of  purporting  only  relied  upon. 
It  is  .true,  that  the  prosecutor  relies  completely 
on  the  charge  of  purportmgy  because  the  pur- 

Eort  and  open  meaning  of  the  oath  is  so  clear ; 
ut  the  proper  answer  to  this  critical  objection 
is,  that  it  is  quite  unnecessary  and  unusual  to 
repeat  in  this  part  of  an  indictment  the  whole 
expressions  previously  used,  as  it  sdways  bears 
such  a  reference  to  what  goes  before,  as  to 
point  the  attention  to  the  preceding  description 
as  that  which'  is  here  spoken  of.  Thus,  ^'  Times 
and  placesybreaauj  the  said  oath  or  engage- 
ment,'' &c.  This  is  the  usual  style,  and  it  is 
not  customary  to  repeat  all  the  preceding 
epithets  and  qualifications  which  are  included 
and  held  repeated  by  the  reference  to  what 
goes  before. 

I  am  sensible  that  there  are  many  things 
which  I  have  omitted,  but  I  will  not  detain 
your  lordships  longer. 

Mr.  SoUcUof  General. — In  concluding  the 
debate  on  the  part  of  the  crown,  I  must  be 
pardoned  for  observing  in  behalf  of  the  prose- 
cutor, that  nothing  is  or  can  be  more  remote 
from  his  intention,  than  to  introduce  into  the 
law  of  the  land  any  of  those  constructive 
treasons  tp  which  reference  was  made  by  my 
learned  friend  at  the  commencement  of  his 
speech  for  the  panel.  Nothing  can  be  more 
remote  from  the  intention  of  the  public  pro- 
secutor in  Scotland  at  any  period.  And  if 
such  a  profligate  design  existea,  it  would  meet 


with  a  sure  and  signal  defeat  from  the  ind^ 
pendence  of  the  bar,^and  firaim  the  vigour  and 
integrt^  of  the  court. 

The  present  prosecution  does  not  involve 
any  eharge  of  constructive  treason.  It  is 
founded  upon  a  statute  of  recent  introduction  ; 
a  statute  quite  plain  and  explicit;  a  statute 
which,  very  unfortunately  for  tne  country,  the 
late  comiption  of  the  public  mind  and  of  ^e 
moral  habits  of  some  part  of  the  population 
has  rendered  necessary  for  the  protection  of 
the  state. 

In  answering  the  argument  nudntained  for 
the  panel,  I  must  take  leave  to  recai  to  your 
lordships'  notice  two  of  the  species  of  treaeoov 
which  were  not  introduced,  but  vrell  definedv 
by  the  statute  of  £dward  III.  These  two 
species  of  treason  are,— ^irtf.  Compassing  the 
death  of  the  king^  fe60iu%,  Levying  war 
against  the  king. 

Your  lordships  are  all  aware,  that  by  dedar^ 
ing  and  defining  the  first  species  of  treason, 
the  legislature  Stowed  upon  a  mental  act — 
upon  the  imagining,  or  compassing  ip  the 
mind,  the  death  of  die  king— the  character  of 
a  completed  crime,  punishable  by  a  luj^  sane* 
tion ;  and  it  provided,  that  in  the  case  of  this 
highest  offence  against  the  state,  mere  intMH 
tion  (which  in  other -cases  is  not  cognizable  by 
the  criminal  tribunals  to  that  effect)  shoiM 
held  the  same  rank  in  the  scale  of  guilt  kmi. 
of  punishment  with  a  completed  act.  It  rein 
dered  the  compassing  or  imagining^  Uiemere 
conception  or  design  of  destroying  the  king^ 
punimable  with  the  pains  of  treason.  There 
IS  a  remarkable  distinction,  therefore,  between 
this  class  of  erimee  and  all  others.  It  may  be 
said  generally,  almost  without  exception,  that 
the  mere  compassing  of  any  other -act,  the 
mere  compassing  of  murder,  for-  instance,  the 
criminally  imagpining  suoh  a  deed  is  not  a 
cognizable  crime,  at  least  is  not  cogniiable  as 
the  crime  of  murder.  But  in  this  department 
of  the  law  the  ease  is  different.  The  imagi- 
nation of  the  king's  death  is  the  statutory 
crime>  and  nothing  more  is  required  than  an 
overt  act,  by  which  this  imagining  is  infened 
or  proved. 

As  to  the  next  species  of  treason^  that  of 
levying  war  against  the  king,  I  do  not  mean 
to  give  an  opinion  upon  die  question,  whether 
the  mere  imagining  of  it,  as  proved  by  the 
administering  or  taking  an  oath,  or  by  any 
thing  short  of  the  total  or  partial  execution  of 
the  act  of  levying  war,  would  be  held  to  foil 
under  the  statute.  I  am  not  here  called  upon 
to  offer  any  opinion  on  sneh  a  question.  But 
you  wilt  see  by  and  by  the  reason  why  T 
have  ealled  jc^t  attention  to  the  drcomslancea 
which  have  now  been  stated. 

On  die  supposidoa,  that  by  the  former  and 
existing  law  it  was  donbtfiil  whether  in  the 
geneml  case  the  mere  intentio%  or  imagining; 
or  compassing  to  commit  any  treason,  when 
not  reauced'  into  action,  is  in  itself  treason, 
the  statute  of  the  52d  of  the  king  was  intro- 
duced, the  object  of  which  was,  to  bring  the 


Jbr  Aimmideriiig  mlm^  Oaikt. 


«7Y) 

frfftifffr  €f  committiiig  treasoD,  when  so  &r 
matuTed  as  to  be  reoaeied  obligatory  hy  an 
oath,  into  tlie  class  d  crimes  pooishabk 
with  death.  Bjr  tbe  previefiis  law,  it  might 
perhaps  be  donbttiil  tihether  such  criminal  in- 
tention could  in  oertata  cases  infer  a  capital 
fNuishaient.  Bot  when  the  intention  is  ap- 
piozimated  to  esecotion  by  an  oath,  and  is 
manifested  by  snch  as  overt  act,  when  it  is 
accompanied  by  an  oath,  to  commit  and  con- 
ceal it,  tiie  legislature  has  enacted  that  it  shall 
be  pfinished  as  a  capital  crime.  That  the  act 
described  so  distinctly  in  the  statute  is  a 
iiigb  dfence,  an  ofenoe  from  which  the  great- 
caa>danger  to  the  public  may  be  apprehended', 
and  by  -which  the  deepest  depravity  of  heart 
in  the  perpetiator  is  proved,  no  man  will 
▼entnre  to  aispute.  I  can  see  no  reason  why 
the  highest  sanction  should  not  be  affixed 


4. 0;  xm- 


well  as  its  i^^plication  to  the  picvtotts  law,  and 
its  necessity  m  the  drcumstsACM  and  chancte? 
of  the  countiy,  on  which  I  have  insistei^,  to  be 
correct,  J  solicit  your  attention  to  the  first,  and, 
in  my  mind,  by  far  the  most  important  objeo* 
tion  Uiat  has  been  made,  as  to  the  mode  in 
.which  the  libel  is  laid.  That  ob|ection  con- 
sists of  two  points  in  law,  as  I  understand  it 
In  the  firit  place,  that  the  oath  taken  does  not, 
upon  a  fidr  construction  of  it,  amount  to  the 
oflenoe  stated  in  the  major  proposition ;  or,  in 
other  words,' to  the  statutoir  offence.  And 
thett,  supposing  it  did,  it  is  alleged,  secondly^ 
that  in  the  indictment  there  is  a  vrant  of 
specification  of  circumstances,  and  detail  of  the 
manner  in  which  the  intended  treason  was  to 
be  committed. 

I  call  your  attention,  in  the  jirs<  place,  to  the 
terms  of  the  oath,  for  I  have  no  hesitation 


hich  are  used.  '^That  every  person 
who  shall,  in  any  manner  or  form  wluitsoever, 
adviaister  or  cause  to  be  administered,  or  be 
aiding  or  assisting  at  the  administering  of  any 
oath  or  engagement,  purporting  or  inteodiiig 
to  bind  the  person  taking  the  same  to  commit 
aay  treason,  or  nraider,  or  any  felony  punish- 
able br  law  with  death,  shall,  on  eonvictioo 
thereof  by  due  course  of  law,  be  adjudged 
guilty  of  fiilony,  and  Mbr  death  as  a  felon, 
without  benefit  of  deigy.*'  It  is  plain,  in 
looking  to  tbe  terms  of  the  statute,  that  it  did 
notcoi^eniplatean  ad  uriiich  has  been  done^  but 
one  wlucfa  is  to  be  done ;  which  exists  only  in 
intention,  bnt  which,  at  the  same  time,  exists 
in  a  amtnred  intention;  an  intention  passing 
froB  the  heart  of  one  man  to  the  heart  of 
anodier,  and  attended  by  the  obligation  of  an 
oadi  te  the  eonoealment  and  accomplishment 
ef  the  jBu^ined  crime.  And  sure  I  am,  that 
it  iaimpoenhle  for  aoy<one  taking  this  view  of  it 
not  to  be  of  opinion,  that  the  act  defined  is  not 
BMrely  a  statutory  crime,  but  must  be  feU  and 
eeafaMed  to.be  a  crime  by  the  common  sense 
aadimiversal  feelingsof  dvilixed  man.  At  all 
tiaMsand  in  afi  pUiMs  it  is  a  crime,  and  in  no 
plaeeor  comtrj  is  it  more  criminal  than  in 
Holland,  utere  there  exists,  in  many  districts  of 
it  at  leasts  a  religious  feeling  amountiag-almost 
to  fanaticism ;  and  .where  a  union  of  political 
and  laligSons  pasaions  mast  create  in  tha  vul- 
gar mfaid  a  darker,  and  more  atrodous  cha- 


tlie  commission  of  it.  I  submit  that  all  this  is  I  in  sa^ng,  thai  if  this  oath  do  not  of  itself,  and 
as  dear  as  the  sun,  and  that  neither  the  ;  in  fair  and  honest  construction,  amount  to  the 
legishaure  nor  the  public  pfo^cutor  can  be  '  crime  laid  in  the  major  proposition,  there  i$  no 
barged  with  any  design  of  introducing  coo-  !  case  before  you.  For  I  have  no  intention  (I 
atractive  treason,  by*  demanding  the  ioflietion  I  disclaim  it,  and  no  one  can  with  truth  impute 
of  a  capital  puidshment  on  such  a  crime.  |  it)  to  press  a  severe  or  harsh  construction  of 

Taking  that  view  of  theobjects  and  purposes  !  the  oath.    The  terms  of  this  oath  have  been 
of  the  statnte,  and  considering  it  with  refer-  ;  often  read  to  you,  and,  however  disagreeable 
to  the  prindples  and  system  of  the  law  i  it  mav  be  to  repeat  that  which  you  have  so  often 

heard,  the  importance  of  the  case  must  be  m]^ 
apology  for  again  readiug  its  words  and  sub« 
(offdships  wiU  be    f^eased^to  attend  to  the  |  jecting  it  to  a  critical  examination.     . 

I  may  here  state,  that  in  construing  the  oath 
there  can  be  little  room  for  difference  of  opinion 
as  to  theprittcipleon  which  you  ought  to  proceed. 
I  am  willing  to  admit,  that  the  panel  .at  the  bar 
is  not  to  be  ensnared  hj  any  subtle,  recondite^ 
and  remote  iaterpretation  of  the  oath,  by  any 
interpretation  different  from  that  which  an  or- 
dinary man  would  put  upon  it,  on  reading  it 
from  beginning  to  end.  But  I  maintain  with 
equal  confidence,  that  the  panel  cannot  escape 
from  the  law,  and  the  public  safety  is  not  to 
be  eikdangered,  by  a  construotioii  in  his  favour, 
which  is  recondite  or  subtle«-4y  an  interpr^ 
tation  of  the  oath,  which  it  plainly  could  not  bear 
in  his  own  mind,  and  which  plainly  he  knew  it 
did  not  bear  in  the  minds  of  those  to  whom  it 
was  administered.  Between  these  two  ex« 
tremes,  it  is  your  peculiar  province  to  strike 
out  the  middle  .course,  and  to  adopt  that  just 
and  rational  interpretation  which  will  not  only 
command  tihe  acquiescence,  but  the  approb%* 
tion  of  the  public  prosecutor.  * 

What  does  the  oath  sayP    ^^In  the  awful 
presence  of  God,  I,  A  B,  do  voluntarily  swear 
that  I  will  persevere  in  my  endeavouring  to 
form   a  brotheriiood   of    affection   amongst 
Britons  of  every  description,  who  are  consi- 
dered worthy  oi  confidence."    I  concur  with 
my  learned  friend  in  sayino^  that  this  part  of 
the  oath,  if  taken  by  itsdl^  is  perfectly  inno- 
cent   The  oath  goes  on,  **  And  that  I  wi|l 
penevere  in  my  endeavours  >  to  obtain  for  all 
Ifhe  people  in  Oreat  Britain  and  Irdand,  not 
Holdiaff,  as  I  do,  with  a  confidence  not  in-   disquulified  by  crimes  or  insani^,  the  electiva 
ferior.to  vuki  whidi  has  bean  expressed  on  the    franchise,  at  the  age  of  twenty-one,  with  free 
dde^  the  inteimuliQnof  the  statute,  as   and  equal  lenresantalioDi  and  annuel  parlis* 

VOL.  xxzm.  N 


1791        57  GEORGE  IIL 


^Tud  tf  WiUum  E^r 


C180 


nents ;  and  that  I  will«8upport  the  tame  to  tlie 
utmost  of  my  power,  either  hj  moral  or 
physical  strength,  as  the  case  may  require: 
And  I  do  further  swear,  that  neithtr  hopes, 
fears,  rewards,  or  punishments,  shall  induce 
ine  to  inform  on,  or  give  evidence  against,  anj 
member  or  members,  collectirely  or  indivi- 
dnally,  for  any  act  or  expression  done  or  made, 
in  or  out,  in  this  or 'similar  societies,  under  the 
punishment  of  death,  to  be  inflicted  on  me  by 
any  member  or  members  Df  such  societies.  So 
help  me  God,  and  keep  me  stediast.*^  Two 
questions  have  been  raised  on  this  part  of  the 
oath.  The  counsel  for  the  panel  has  main- 
tained two  propositions.  First, Thai  the  words 
**  tttpport  the  mant^^  mean,  that  the  oath-taker 
was  to  support  annual  parliaments  and  univer- 
sal suffrage,  after  these  mighty  improvements 
were  estiu>lished  by  I'egular  and  constitutional 
means.  And,  tecmdy  That  even  if  the  words 
nf^pori  Mc  same  mean,  to  support  the  eodea- 
voars  to  obtain  these  objects,  yet  the  p^/ncal 
strength  to  be  used  was  capable  of  being  used 
in  a  manner  not  illegal. 

On  the  first  point,  your  lordships  hava  to 
consider  what  is  here  uuderstood  by  the  word 
seme.  What  is  the  antecedent  to  this  pro- 
noun ?  I  submit,  there  are  only  two  ways  of 
giving  a  sound  construction  of  this  word.  It 
must-  eitfier  apply  to  the  whole  of  the  previous 
branch  of  the  sentence,  or  to  a  part  ot  it.  If 
the  first  is  adopted,  and  if  it  be  held  to  embrace 
the  whole  of  the  previous  part  of  the  sentence, 
and  if  the  antecedent  be  considered  as  thus 
extensive,  then  the  construction  put  upon  it 
by  the  other  side  vnll  be  destroyed;  for  if  the 
word  *'  same"  embraces  all  tba  previous  part 
x>f  tlie  sentence,  it  includes  both  the  use  of 
physical  force  in  obtaitiing  annual  parliaments 
und  universal  suffrage,  and  its  employment  in 
Maintaining  these  objects  after  they  are  accom- 
plished. This  is  a  mode  of  construction  so 
perfectly  fair,  that  the  panels  cannot  object 
to  it. 

'  But  this  is  not  the  construction  which  a  pe- 
rusal of  the  oath  naturally  dictates.  It  is  dear 
that  by  it  the  obligation  to  accomplish  the 
wished-for  changes  by  physical  strengtii  was 
contemplated,  and  that  this. was  the  sole  pur- 
pose of  the  oath.  I  maintain,  that  taking  t^e 
whole  of  the  oath  together,  comprehending  the 
'obligation  to  conoeaJment,  it  is  impossible  to 
consider  it  without  condudinff,  not  by  a  remote 
and  distant  cotistruction, but  Indirect  rational 
necessary  inference,  that  the  parties  had  in 
thdr  minds  a  criminal  accomplishment  of  their 
designs,  and  the  moment  criminal  intention  is 
granted  tome,  it  folfows  that  there  can  be  no 
criminal  accomplishment  of  this  design,  but 
flueh  as  would  oe  treason.  The  reasonable, 
the  ftur  constmction,  •  thai  which  -obvionsly 
mnst  have  have  been  in  the  mind  of  the  giver 
aikd  taker  of  the  oath,  is,  that  the  wvrd  same 
bad  no  other  application  than  that  wksich  I 
^bave  stated,  viz.  to  bind  to  the  use  of  phy- 
sical strength  for  the  attainment  of  the'object. 
-This  is  the  eorveet|  graminatical  ooBBtnictum^ 


pointed  out,  not  only  by  the  juxtaposition  of 
the  vrords,  but  by  the  general  sense  of  the  whole 
passage  and  of  the  vriiole*  oath ;  and  it  fs  im^ 
possible  to  put  an^  other  inteipretation  upon 
It,  without  sacrificing  the  pubuc  safety,  and 
public  law  to  a  forced  and  subtle  construction. ' 
I  do  not  dweti  longer  on  this  point,  bo- 
cause  truly  it  lies  in  a  nut-shell,  and  if  by 
merely- stating  it,  I  do  not  shew  that  I  am  in 
the  right,  I  despair  of  doing  so  by  any  length 
6f  argument. 

Now,  your  lordships  have  to  consider^ 
whether,  supposing  it  were  established  that  the 
obligation  in  the  oath  is  to  support  endeavours 
to  obtain  annual  parliaments  and  univecsal 
suffrage*  by  physical  strength,  the  act  which 
was  thus  meditated,  does,  li  accomplished, 
amount  to  treason.  That  such  purpose  woidd, 
if  accomplished,  have  constituted  treason,  is 
proved  by  the  concurrent  testimony  of  all  law* 
yers  ancient  and  modem.  The  essence  of 
treason  consists*  in  the  application  of  force 
to  the  accomplishment  of  an  alteration  in  any 
general  law.  How  did  tty  learned  Mend  get 
out  of  this  dilemma?  He  maintained  ml 
physical  strength  forttie  accomplishment  of  any 
diaiMre  in  the  laws  of  this  kingdom,  might  by 
possibility  be  exercised  without  committing 
treason ;  and  this  he  iflustrated  by  supposing  the 
case  of  the  Sneaker  of  Uie  House  ox  Commons 
being  forced  ny  threats  and  violence  to  consent 
to  a  bill  for  the  abolition  of  the  House  of  Lords, 
or  of  anv  of  the  branches  of  the  constitution, 
which  bul  having  passed  the  House  of  Lords, 
had  its  fote  dependent  on  the  Speaker's  casting 
vote.  That  whimsical  case  can  scarcely  be 
called  a  case  in  illustration ;  but  if  it  were 
neoessaiy  for  me  to  enter  into  that  supposed 
case,  I  would  say  without  hesitation,  that  here 
was  treason,  not  merely  under  the  act  of  '^e 
36th  of  the  king,  but  under  what  I  may  call  the 
previous  common  law  of  the  land.  Many  de- 
cisions might  be  referred  to,  to  establish  this. 
But  I  have  no  occasion  to  enter  upon  sudi  an 
inapplicable  question. 

The  other  instanoes  of  the  possible  exertions 
of  physical  force  in  the  accomplishment  of  the 
purposes  contemplated  by  the  panel  and  bis 
associates  are  utieriy  absurd.  It  is  said,  that 
physical  force  may  be  exerted  in  the  canying 
of  messages,  in  the  erection  of  hustings,  in  die 
keeping  off  the  crovrds,  and  in  various  other 
ways  which  are  all  innocent,  and  whid^  are  sJl 
Gondaeive  to  the  attainment  of  the  objects  in 
view.  I  contend,  that  in  these  illustrations 
the  tounsel  for  the  panel  forget  or  overiook  the 
distinction  between  the  terms  moral  said 
physical,  as  employed  to  characterise  humlm 
action.  When  a  man  delivers  an  oration, heis 
tmdeiBtflod  in  Ammon  language  to  exercise  his 
moral  power  or  strength.  But  my  learned 
friends  must  admit,  thateome  pbyncal  force  or 
strength  is  also  at  the  same  time  everted.  To 
make  the penl^th which  the  poliiioal  oaHoria 
tovrrite,  to  carry  the  bench  fromwhieh  the 
political  orator  is  to  deelaim,  to  keep  off  ti»e 
cr^wd  vrith  which  the  poUtidal  orator- woald 


ISI] 


for  Atbkitdderiiig  unlawful  Oalht, 


A.  D.  I8I7. 


Il8i» 


Otherwise  be  incominoJedy  are  all  actions  sub- 
serrient  to  the  moral  powers  which  are  to  be 
exerted.  It  is  impossible  to  d^ny  this  without 
GonfoQDdin^  the  disdnction  between  the  terms 
moral  and  physical.  Ko  moral  power  can  be 
exercised  by  man  without  physical  exertion^ 
Ifut  when  the  distinction  to  whidi  I  have  ad- 
verted is  reooUectedy  the  iUnstrationv  which 
have  been  offered  are  either  in  themf  eUes  ab- 
sard,  or  are  against  the  argument  of  the  panel, 
and  most  be  classed  with  moral,  and  not  pby* 
sical  exertiona. 

The  obligation  in  the  oath  is,  to  employ 
moral  and  phjvical  strength,  as  the  case  may 
Mquire — tlAt  is,  such  moral  strength,  as  the 
case  may  require,  and  such  physicil  strength, 
as  the  case  may 'require.— It  is  thus  clear,  3iat 
tbe  terms  of  the  oath  do  not  bear  a  limitation 
to  that  innocent  sort  of  force  by  the  criminal 
example  of  which  the  learned  counsel  illus- 
trated his  argument.  According  to  the  dear 
terms  of  tbe  oath,  such  physical  strength  was 
to  be  employed  as  the  case  might  require,  for 
the  accomplishment  of  the  purposes  which 
bare  been  mentioned.  What,  I  ask,  are  we 
to  understand — what  is  the  le^  inference 
from  the  construction  I  have  given?  It  is, 
that  physical  strength,  «s  the  exigency  might 
require^  was  to  be  used  for  the  aocoqtiplish- 
ment  of  a  change  in  the  constitution. 

It  is  unnecessary  to  advert  to  the  extreme 
absordity  of  endeavouring  to  distinguish  be- 
tween tlMS  meaning  of  the  words  sfrev^M  and 
Jane.  They  are  certainly  synonymous  terms; 
and  for  the  present  purpose,  at  least,  no  dis- 
tinctioD  can  be  stated  between  them,  either  in 
popular  or  technical  use.  It  is  impossible  to 
acoompliah  the  alteration  or  subversion  of 
any  part  of  the  constitution  by  physical  force, 
^thonty  in  legal  acceptation,  levying  war  for 
ihat  purpose,  or  compassing  the  king*s  death, 
•r  bein^  guilty  of  some  oUier  treason.  '  The 
application  of  numerical  physical  strength  is 
nothing  else  but  the  levying  of  war.  JBut  if 
war  be  levied  within  the  lungdom  for  any 
|(aiiecal  purpose, — ^for  the  purpose  of  subvert- 
ing any  of  me  branches  of  the  constitution, — 
th^  war  is  understpod  to  be  r  levied  against 
the  king,  who,  being  the  executive,  is  bound 
to  protect  the  other  branches  of  the  Legisla* 
tare.  This  is  the  import  of  all  the  antborities, 
to  some  of  which'  I  may  now.  direct  the  atten*> 
lion  of  the  Court. 

The  first  authority  to  which  I  refer  is  that 
tif  Bladcstone,  who  states  the  law  in  a  brief 
and  popular  form.  ^  The  third  species  of  treason 
n^  '  It  a  nan  do  levy  war  affunst  our  lord  tbe 
hug  in  his  realm**  And  this  may  be  done 
bj  taking  anns^  not  only  to  dethrone  the  king, 
wA  aader  pretence  to  reform  religion,  or  the 
tows,  or  to  remove,  evil  counsellors,  or  other 
grievances,  whether  real  er  pretended.  For, 
tbe  law  does  not,  neither  4^.  it,  permit  any 
private  man,  or  set  -of  men,  to  interfere 
Miciblyin  matteis  of  such  high,  importance'; 
especially  as  it  ^as;  eitablished  a  sufficient 
power,  loi  these  purposes,  in  the  bigb  court  of 


Parliament:  neither  does  the  constitution 
justify  any  private  or  particular  resistance  for 
private  or  particular  griefances;  though  in^ 
cases  of  national  oppr^ion  the  nation  has' 
very  justifiably  ris^n  as  one  man,  to  vindicate 
the  origins^l  contract  subsisting  between  the 
king  and  his  people."  * 

Ibe  next  authoritv  to  which  I  refer  is  that  of 
£w<er,  a  book  which  is  daily  cited  by  English 
Judges,  as  an  undoubted  authority.  I  quote 
from  page  211. — "Insurrections  in  order  to 
throw  down  all  enclosures,  to  alter  the  esta« 
blished  law,  or  change  religion,  to  enhance  the 
price  of  all  labour,  or  to  open  all  prisons — all 
risings,  in  order  to  effect  these  innovations,  of 
a  public  and, general  concern,  by  an  armed 
force  are,  in  construction  of  law,  high  treason, 
within  the  clause  of  levying  war ;  for  though 
they  are  not  levelled  at  the  person  of  the  king, 
they  are  against  hisjt>yal  majesty;  and  be- 
sides, th^  have  a  direct  tendency  to  dissolve 
all  the  bonds  of  society,  and  to  destroy  all 
property,  and  all  government  too,  by  numbers 
and  an  armed  force.  Insurrections  likewise 
for  redressing  national  grievances,  or  for  the 
expulsipn  of  foreigners  in  general,  or  indeed 
of  any  single  nation  livins  here  under  the 
protection  of  the  king,  or  tor  the  reformation 
of  real  or  imaginary  evils  of  a  public  nature, 
and  in  which  the  insurgents  have  no  special 
interest— risings  to  effect  these  ends  by  force 
and  numbers  are,  by  construction,  of  law, 
within  the  clause  of  levying  war;  for  they 
are  levelled  at  the  kings  crown,  and  royal 
dignity." 

the  only  other  authority  to  which  I  shall^ 
refer,  is  that  of  a  Judge,  than  whom  none  was 
ever  more  highly  or  more  deservedly  honoured 
during  a  long  and  splendid  career.  I. quote 
from  the  summing-up  of  lord  Mansfield  on 
lord  George  Gordon's  trial. — *'  There  are  two 
kinds  of  levying  war : — One  against  the  per^^ 
son  of  tbe  king;  to  imprison,  to  dethrone,  or 
to  kill  him ;  or  to  knake  him  change  measures 
or  remove  counsellors : — ^llie  other,  which  It 
said  to  be  levied  against  the  majesty  pf  the 
king,  or,  in  other  words,  against  him  in  his 
regal  capacity ;  as  when  a  multitude  rise  and 
assemble  to  attain  by  force  and  violence  any 
object  of  a  general  public  nature;  that  is 
levying  war  against,  the  majesty  of  the  king ; 
and  most  reasonably  so  held,  because  it  tend^ 
to  dissolve  all  the  bonds  of  society,  to  destroy 
property,  and  to  overturn  government;  and  by. 
force  of  arms  to  restrain  the  king  from  reigi> 
ing  according  to  law. 

^Insurrections,  by  force  and  violence,  to 
raise  the 'price  of  wages,  to  open  all  prisons, 
to  destroy  meeting-bouses,  nay,  to  destroy  all 
brothels,  to  resist  the  execution  of  militia  laws, 
to  throw  down  all  inclosures,  to  alter  the  esta- 
blished law,  or  change  religion,  to  redress 
grievances  real  or  preiended,  have  all  been 
held  levying  war.  Many  otiier  instances 
might  be  put.    Lord  Chief  Justice  lloli,  iu 

*  4Comm.  ai. 


gir  Jobn  Friend's  cas«,  says,  ^^if  pevsoin  do 
assemble  themselves,  and  act  witn  force  in 
opposition  to  some  law  which  they  think  in* 
coDTenient,  and  ho^  thereby  to  get  it  re- 
pealed, this  is  a  levying  war,  and  treason."  In 
the  present  case,  it  don't  rest  npon  an  impli- 
eation  that  they  hoped  by  opposition  to  a  uiw 
to  get  it  repealed,  but  the  prosecotion  proceeds 
npon  the  direct  ground,  tnat  the  object  waiy 
by  force  and  violence,  to  compel  the  Legis- 
lature to  repeal  a  law;  imif  tAere/bre,  witAoitf 
fifty  doubif  lUU  you  the  jomi  opinion  ofvsaUj 
that  J  if  thii  mtdmide  auembled  with  intent^  by 
ccts  y  force  and  violence^  to  compel  <Ae  L^U' 
lature  to  rneal  a  Imo,  it  ii  high  tmmm. 

^Tboogn  the  form  of  an  indictment  for 
this  species  of  treason  mentions  drums,  trum- 
pets, arms,  swords,  fifos,  and  guns^ye^  ntme  of 
ikt$e  dramntoRca  are  etMentiaL  The  quettion 
choeysiMy  Whether  the  intent  tt  hy  farce  and  vio^ 
knee  to  obtain  an  oljeet  of  a  general  andmtbtic 
nature  by  any  imtrwnents,  or  bydmt  of  their 
numbertf  Whoever  incites,  advises,  encon- 
nget,  or  is  any  way  aiding  to  sudi  a  multitude 
so  assembled  with  such  intent,  though  he  does 
not  personally  appear  an>oog  them,  or  vrith 
his  own  hands  commit  any  violence  whatsoever, 
yet  he  is  equally  a  principal  with  those  who 
act,  and  guilty  of  nigh  treason/'*  .Many 
other  authorities  to  the  same  effect  might  be 
accumulated.  I  need  not  quote  Hume,  who 
«ves  a  very  luminous  abstract  of  all  the 
English  antboritieron  the  subject,  and  gives  a 
summary  which,  in  perspicuity  and  preci- 
sion, is  not  surpassed  by  the  boasted  oracles 
df  English  law. 

I  say,  therefore,  on  these  authorities,  it  is 
utterly  impossible  to  imagine  that  any  change 
*in  the  constitution  can  be  accomplished  by 
physical  strength,  without  necessarily  implying 
— not  constructively,  but  necessarily  implying 
— 4hat  it  is  done  by  force  and  violence.  Levy- 
ing war  is  nothing  more  than  the  application 
of  an  act  which  is  treason.  The  for&v  or  mode 
of  this  act  may  probably  be  that  of  levying 
war,  to  overcome  or  prevent  resistance.  It 
does  not  consist  in  having  drums,  or  uniformity 
of  dress,  or  the  other  usual  appendages  of 
warlike  pomp.  It  does  not  consist  in  any 
particular  kind  of  offensive  arms,  but  in  the 
application  of  a  powerNk  and  numerous  force; 
and  it  is  impossible  tl^t  strength  for  the  ac- 
complishment of  any  change  in  die  consti- 
tution can  be  applied  in  any  way,  so  as  not  to 
include  the  crime  of  treason,  either  of  levying 
war,  or  of  compassing  the  king's  death,  or  m 
treason,  under  the  Stat.  36  G.  III.  That 
which  is  accomplished  by  force  can  only  be 
dotie  iub  rpeae  oelUf  in  so  fer  at  those  terms 
have  any  intelligible  meaning,  and  the  same 
quality  must  characterise  that  which  is  in« 
tendea  mt  resolved  to  be  donei  I  submit, 
therefore,  that  the  construction  given  by  die 
learned  gentleman  to  the  oath  is  erroneous,- 
and  that  the  only  sound,  the  only  legal,  and 


Triai  qflViUiam  Edgttr 


tlM 


•«MM«n 


•  2t  How.  St.  Tr.  644. 


the  only  obvious  eoi)stniction  of  it,  i»  that 
which  I  have  stated  to  your  lordships. 

It  iHs  contended  forther,  however,  tha^ 
supposing  a  treasonable  purpose  to  have  ex- 
isted, it  is  still  necessary  that  it  should  be 
proved  by  and  appear  in  the  oath,  and  in  the 
oath  alone,  in  oruer  to  have  the  Tase  braiught 
under  the  statute.  If  I  rightly  understood 
tiiis  plea,  two  things  were  maintained,  wMch 
I  own  appeared  to  me  to  be  inconsistent:  It 
was  first  maintained,  that  then  is  a  want  of 
specification  in  the  indictment  as  to  the  mode 
in  which  the  treason  contemplated.by  the  oath 
was  to  be  effected ;  next,  it  was  maintained, 
that  in  this  indictment,  charging  the  panda 
with  administering  unlawfM  oaths,  we  are  not 
entitled  to  go  into  any  proof  of  acts  of  treason 
said  to  have  been  committed  \q  them,  for  that 
would  be  to  make  the  proof  of  one  crime  the 

Fr9of  of  the  commi^on'  of  another.    These 
consider  to  be  inconsistent  objections. 

Whether  the  treasonable  purpose  should  ap- 
pear in  the  oath  itself,  to  bring  the  case  witiun 
the  statute,  it  is  unnecessary  to  ame,  because 
in  the  present  case  we  do  not  desire  to  go 
beyond  the  contents  of  the  Oath.  But  in  pas- 
sing, I  roust  deny  that  this  plea  for  the  panel  is 
sound,  or  at  all  warranted  by  the  terms  of  the 
statute. 

With  respect  to  the  other  objections,  I  must 
observe  that  from  the  nature  of  the  crime 
which  the  statute  hasi  defined,  you  neither  can 
require,  nor  can  yon  eiqiect,  in  charging  it, 
a  specification  of  overt  acts  of  treason.  Ac-. 
Corain^  to  the  previous  argument  of  the  panrt, 
the  prosecutor  is  not  entitled  to  prove  any  acts 
of  treason,  if  such  had  been  actually  com- 
mitted, and  herein  lies  the  monstrous  incon* 
sistency  of  his  present  argument.  In  my  view 
of  the  case,  tM  specification  which  the  mad 
thus .  alternately  opposes  and  demandt,  is 
morally  impossible. 

The  charge  hero  is  not  for  the  accomplish- 
ment and  completion  of  the  crime  of  treason ; 
— the  Charge  is  for  the  conception,  the  nia- 
gination  of  treason,  sanctioned  by  an-  oath, 
and  so  far  by  an  overt  act  consisting  in  the 
administration  of  an  oath.  When  a  crime  bas 
not  been  actually  committed  it  is  impossible 
Co  state  the  circumstances  of  mode,  time,  aii^ 
detail  of  execution.  When  a  crime  has  been 
.  committed,  it  is  of  course  an  essential  mode  of 
that  criminal  act,  that  it  was  accompanied  by 
time,  place,  and  circumstances;  and  when  a 

Eanel  is  brought  to  the  Bar  on  a  diarge  of 
aving  committed  a  ciim^  the  prosecutor  can 
have  no  knowledge  regarding  it  without 
knovring  some  of  the  prominent  dreuastances 
of  its  execution.  But  you  must  all  be  aware^ 
that  this  rale  cannot  ap»ply  fo  what  merely 
exists  in  intention.  Of  intention  hete,  ytmr 
lordships  have  evidence  by  the  oath,  and  th« 
oafli  is  such  as  the  statute  has  made  it  a 
crime,  dther  to  adminfoter  or  to  take. 

The  crime  charged  is  the  adaadniBtetisif  an 
oath  of  a  certain  kind,'  and  the  mode  of  tbit 
aot  is  admitted  to  be  suflkiently  ^kldled.    H 


1853 


Jar  AdrnmiiUring  UmIm^  Oathi. 


A.  D.  1817. 


UM 


IB  powble  that^wben  tlie  otth  was  adnius- 
tefedy  not  cme  circmnstiDee  was  finally  ra- 
solved  upon  as  to  the  detail  of  the  ezecation 
of  tike  treaaon  ^-it  is  cpute  pooible  that  no 
ooe  cncomaunoe  nnqr  hare  b^en  fixed  on  as 
to  the  mode  in  whidi  it  was  to  have  been 
carried  into  elfeet ; — and  no  lesoliitions  adopt- 
ed as  a>  the  ooune  of  proceeding  to  be  folkm- 
ed  fiw  the  nocompHaoment  of  the  atrocions 
imiposea  of  the  parties.    Diflerent  plans  ma^ 
tare  eiiated  in  the  minds  of  difiierent  consp- 
lators; — ^therenay  have  been  nnmeioasdttH 
pvtea  on  the  anbject :— end  therefore^  from  the 
very  naftnre  of  the  statntoiy  crim^  it  is  hn* 
poanble  that  any  snch  detail  as  the  opposite 
yeity  raqniin  could  be  given ;  and  it  is  enon^ 
lo  any  thai  the  statute  has  not  required  it. 
The  nature  of  the  treaaon  which  the  oath  bound 
the  parties  to  commit  is  as  much  specified  as 
it  is  poaaible  fi>r  the  public  praaecutor,  or  for 
any  human  being,  to  spedfv*    He  has  said, 
that  the  treaaon  contemplated  waa  iiM  vdiich 
cenaismd  in  compelling  an  alteration  in  the 
aataifaliabed  laws  by  force  and  violence.    That 
this  would   be  treason^    who   can   doubt  t 
Wbethepy  in  the  actual  aeoomplislunent  of  it, 
the  erimhals  would  have  levied  war  against 
the  king,  in  the  sense  in  which  the  law  uses 
dwaetennsy  or  whether  they  would  have  com* 
paased  or  imagined  the  death  of  ttie  king,  or 
whether  both  these  legal  Crimea  would  have 
been  perpetrated  in  the  actual  conaammatvM 
of  dieirpurpeae,  whocanpfetend  tosay?  To 
demand,  that  the  public  diould  divine  and 
specify  the  mode  in  which  ^  treason  was 
•etnaliy'to  be  perpelmted,  isaDsuid  andim* 
poasibte,  because  Uie  modes  ate  various.    To 
deBBsad  tfamt  he  should^spedfy  all  the  modes 
m  whicii  the  intended  treason  ought  to  be  per- 
petrated, is  plainly  unneceasary  and  uaeMtt* 
It  ia  aofficient  fivr  him  to  satisfy  your  lortehipi^ 
'that  the  object  contemplated  if  the  oadi  could 
ftot  be  aoeompUAed  but  by  means  of  treason ; 
and  on  tins  I  have  already  statod  m  v  argument, 
na  Ihe  w<»d8  of  the  highest  anthontieB  of  the 
Aaw. 

Bat  it  was  also  rather  inconsistently  urged, 
tfiat  if  we  had  stated  treason  to  have  been 
committed  witlTall  itactreamataiiceSyWeslMmld 
not  have  been  entitled  to  ofier  any  proof  of 
this  averment,  or  to  give  any  detttl  of  the 
teta  haai,  as  the  panel  is  not  on  hia  trial  for 
high  treason;  and  one  otrjeetion  to  |he  indict- 
aaant  la  to  thenairative  of  details  widi  vriiioh 
the  Btatotory  ofieace  is  iatrodueed.  On  lo<dc- 
iag  into  the  statute,  I  think  it  is  hardly  neeea* 
aaiy  togointothuquestiony  beeanse  itianot 
oeeioimre  that  the  commission  of  o¥cit  acts  <£ 
ummm  Aotdd  be  aJleged.  I  submit  tOto^thA 
avfaat  my  leamed  iriendy  who  Hamediately  ^liro- 
«eded  me  in  behalf  of  the  public  praeecutor, 
acnted  on  this  put  of  the  sntgect,  was  agrees 
•hie  to  the  law  of  Scotland,  and  suffieieiitly 
obviates  a&  that  was  urged  in  .the  way  of  ob- 
jectien  to  ttfirpart  of  th»  ease. 

IncomlneioaL  it  ins  etrondy  and  powei^ 
.ftiB9^«i«fi,  o^a  hWbhi|i  In  %  «ub  oC  ibt 


paiAL  tftet,  though  acquitud  On  diis  oaaarion. 
Be  might  be  afterwards  tried  for  treason.  If 
he  were  to  be  acquitted  of  this  chaige,  and 
afterwards  brouffht  to  trial  ibr  treason,  I  sus- 
pect we  ehould  near  ficom  his  couasel  an  eflbc- 
taal  atgument  a^nst  sodi  second  tiiaL  I 
content  myself  with  aaying,  that  nor  view  and 
interpretatioa  of  ttie  statute  it  totaUy  and  abso- 
lutely different  ftom  that  of  my  leeroed  friend, 
Mr.  Cranstonn,  and  that  m  eonceivei  ftom 
the  temn  of  it,  it  is  impossible  audi  a  second 
trial  could  be  atteaipted.  It  is  said,  in  the 
last  chKise^  '« Ibat  any  person  who  shall  be 
tried,  and  acquitted  or  convicted  of  any  offeneo 
against  this  act,  sleff  not  k  fittfe  lo  fte  MKiid; 
proeeoul0^  or  tritd  flgwii  fbt  ths  toawcwisMCji 
or  factf  as  high  treaaon,  or  misprision  of  hlgii 
treason;  and  mat  nothing  in  this  act  eootaiMd 
shall  be  cousfaued  or  extend  to  prohibit  any 
perMm  guilty  of  any  offenee  against  this  ne^ 
and  who  ahidl  not  be  tried  for  the  same  aa  aa 
offence  against  this  act^ftom  being  tried  for 
the  same  as  high  treason,  or  miipriiian  of 
higfatreaaoui  in  such  manner  as  if  tins  aet  had 
not  been  made.^ 

This  chutte  wae  intended  to  gnrd  aganat 
two  inconveniences.  '1st,  It  waa  intended  tf 
protect  the  eubject  ftom  being  tried  again  aa 
for  tijaaon  upon  the  facts  on  whieh  die  ttailtt- 
toiy  crime  shall  have  been  already  prosecuted^ 
In  odier  words,  it  would  be  impoeaude  to  give 
in  evidence,  in  any  subsequent  trial  of  this  pti* 
soner,  any  of  the  fi«ts  whidi  have  been  Ad- 
mitted to  proof  in  the  present  case,  ted.  It 
was  intended  to  guard  apinst  the  posaih&ty 
of  the  enactments  of  thn  itatute  beinff  ce»* 
strued  to  afibct  the  prindples  of  the  nw  of 
treaaon  previously  establislied.  If,  theirefoN!^ 
the  pubuc  prosecutor  were  to  attempt  to  bring 
the  prisoner  to  trial  for  treason  ilter  an  oo- 
qnittarin  this  case>  he  could  not  bring  in  evi» 
deuce  iiiiy  one  of  die  fhets  tfhieh  were  mere 
or  len  connected  with,  the  present  ehaife* 
11iisfa.the  plain  and  aeoeesary  oCnstrnction  of 
the  clause  in  the  statute^  and  entirely  removea 
the  olijeelion.  • 

•  I  have  to  cdl  your  attention  to  an  aothori^T 
upon  Ae  question  that  has  been  started  io» 
lating  to  'the  speeifloation  of  the  erime.  It  haa 
been  maintained,  that  we  are  bound  to  tpecify 
the  general  nature  of  dm  conapiiacjr  heme  wo 
can  proceed  to  phove  the  <iriaMnil  mtentign  of 
the  perties.  On  this  tnWect  I  may  nfor  to 
the  gesetal  tsims  inwUdi  ah  BAgtiah  aldtct- 
ment  haa  been  laid  and  fcnod  relevant.*  Sodb 
A  dediion,  idthough  it  eaimot  afibot  the  law  of 
Scotland  as  a  oenclutive  uutbority,  vat  ia;r#- 
spaotdbteia  its  way,  and  worthy  eteonaiffcv* 
utiom  I  Mbmit  that  in  describing  the  iUefal 
iodfltieB,  Ao  temife  uM  in  this  English  in* 
dietment'tre  more  geavial  thato  Aoia  wUdi 
dm  praiechtor  has  employed  on  lids  ocaasioii, 
and  to  which  an  otgectxm  has  been  taken.  On 
dmwhol^  I  ma&maitt  tiuit  dm  indietaMnt  be- 


jm 


^  JSL  V.  Mcon^aod  :o<faer%  «  JBL  41^ 
,1  Aim.  tm ;  3  CUl»  Crim,  JLetcylO). 


n; 


1871 


ff!  GEORGE  III. 


Trial  of  miUam  Edgar 


[188 


fore  yoQy  in  the  £)rm  in  which  it  is  liid/  (Might 
to  be  ftmnd  rdevant. 

Mr.  GfarA.^— Tliis  indictment  'proceeds  upon 
nn  act  of  parliament  passed  in  the  52nd  year 
of  his  majesty's  reign,  against'  administering 
nclawfiil  oaths ;  and  accordingly  certain  clauses 
of  the  act  are  set  forth  in  themuor  proposition, 
ts  containing  the  description  of  the  crime  to  be 
diarged.  This  being  the  accusation,  I  need 
not  remark  that  it  would  haVe  been  easy  for 
the  ]^nbUc  prosecutor,  if  he  had  a  case  faitting 
within  the  act  of  parliament,  to  confine  him- 
self to  it  in  the  minor  proposition  of  his  indict- 
ment, by 'Stating  in  plain  terms,  that  true  jt 
was  and  of  verity,  tiiat  the  panel  had  admi- 
nistered such  an  unlawful  oatn  as  that  which 
was  prohibited  by  the  statute— reciting  the 
terms  of  the  oath— averring  that  an  oath  in 
theie  terms  ftll  under  the  statute  as  being  a 
tnosonable  oath — stating  how  and  in  what 
TCspectit  was  treasonable,  and  to  which  of 
^  different  species  of  treason  it  iqpplied — 
and  specifying- the  time,  place,  and  occasion 
of  connnitting  the  crime.  The  relevancy  of 
such  an  indictment  might  perhaps  have  been 
sustained.  But  the  pifblic  prosecutor  has  not 
confined  himself  to  the  proper  charge  appear* 
ing  on  tiie  major  proposition  of  his  own  inclict- 
ment,  but  has  attempted  most  illegally  to  in- 
tiodnce' matters  totuly  unconnected  with  it, 
for  the  purpose  of  embarrassing  the  prisoner 
with  accusations  of  a  kind  totally  dmerent, 
and  which  cannot  be  the  subject  of  inquiry 
with  reference  to  this  charge. 

In  aid  of  his  argoment  the  public  prosecutor 
has  founded  on  an  Englidi  case,  in  which  one 
was  convicted  on  evidence  of  circumstances  to 

rre  Ids  intention  in  administering  an  unlaw« 
oath.  I  mention  this  now,  because  it  is 
proper  to  Udce  an  eariy  opportunity  of  distin- 
gniMiing  that  case  from  tne  present.  I  know 
veiT  little  of  the  English  case  referred  to;  but 
on  hearing  it  read,  I  observed  quite  enough 
to  perceive  that  it  was  a  case  totally  diiSerent 
fipom  the  present— proceeding  oa  another  act 
«r  Parliament,  different  in  its  terms  from  the  act 
which  is  now  fbonded  on  by  the  public  prose- 
cutor. Under  the  former  act  it  is  competent 
to  prove  the  intention  of  the  unlawfid  oath  by 
dreumstances  extraneous  to  the  oath  itself, 
though  that  is  not  oompetent  in  the  present 
case,  in  which  the  Court  and  jury  must  cour 
sider  the  terms  of  the  oath  and  nothing  else. 

It  has  to-day  been  noticed  more  thvi  once, 
^t  besides  the  act  of  pariiament  libelled  on, 
there  is 'another  ael^elating  to  unlawful  oaths. 
But  when  yon  attend  to  the  language  of  that 
act,  you  will  see  the  difference  between  the 
terms  ^re  used,  and  those  which  are  em- 
ployed in  this  act  of  the  52nd  of  die  kin^,  and 
yovL  will  see  the  reason  of  that  difference,  and 
now  it  ought  to  afitect  indictments  founded  on 
these  acts. 

■  The  indictment  before  the  Court  is  founded 
en  the  act  passed  in  tiie  52nd  year  of  his  ma* 
jesty,  directed  against  those  ^  who  shall,  in 
imy  manner  or  form  whatsoever^  administer, 


or  eanse  to  be  administered,  or  be  aiding  or 
assisting  at  the  administering^  of  any  oath  or 
engagement,  pwrportmg^  or  nUendmg  to  bind 
the  person  takioff  the  same  to  commit  any 
treasoq."  &c.  These  persons  are  liable  to  the 
punishment  of  death,  and  every  person  iriio 
shall  take  the  oath  is  punishable  by  transporta- 
tion. By  the  4th  section  it  is  enacted,  that 
persons  aiding  and  assisting  at  the  administer- 
ing of  any  such  oath,  shall  l^  deemed  principal 
omnders,  and  liable  to  the  same  punishment 
of  death.  By  section  5  it  is  not  necessary  to 
set  forth  the  wqrds  of  the  oath,  and  it  **  shall 
be  sufficient  to  set  forth  the  purport  of  sodi 
oath,  or  some  material  part  thereof.'*  By 
section  6.  *^  any  engagement  or  obligation 
whatsoever  in  the  nature  of  an  oath,  purport' 
ing  or  miendmg  to  bind  the  persoa  taking  the 
same,  to  commit  any  treason,  &c.  shall  be 
deemed  an  oath,  within  the  intent  and  meaning 
ofdiisact.'' 

Now,  by  comparing  this  act  with  the  former, 
it  appears,  that  as  the  penalties  are  more  severe, 
so  me  description  of  the  crime  is  more  limited 
than  in  the  former  act  It  is  necessary  that 
the  oath  or  engagement  shall  j?Hrpor^  or  intend 
to  bind  the  person  taking  the  same  to  commit 
the  treason,  or  other  crimes  punishable  with 
deadi,  wbidi  plainly  signifies,  that  the  purport 
or  intendment  of  the  oath  only,  or,  the  true 
meaning  of  its  words,  shall  be  considered  in 
any  prosecution  against  those  who  administer 
it.  The  purport  of  an  oath  has  no  reference 
to  the  in^tion,  criminal  or  otherwise,  of  the 
party  who  administen  it.  The  words  of  the 
oath  may  be  innocent,  and  vet  the  intention 
may  be  very  criminal.  On  the  other  hand,  the 
words  may  oe  veiy  mischievous,  and  vet  the  in* 
tention  may  be  otherwise.  But  the  legislature 
imposes  the  penalty  according  to  the  purport  of 
the  oath ;  the  intendment  is  the  same  with  the 
purport  in  speaking  of  the  oath ;  and  either  ot 
these  terms  may  be  considered  as  synonymous 
with  the  true  meaning  of  the  oath  separately 
considered,  and  without  regard  to  the  intention 
of  the  party  who  administers  or  takes  it. 

In  one  view,  this  statute  is  uncommonly 
severe,  inflicting,  as  it  does,  a  capital  punish*- 
ment  for  administering  an  oath  which  may  be 
followed  by  no  crime  whatever.  And  even  ia 
taking  tibe'oath  according  to  its.  purport  or  in- 
tendment, there  is  much  severity;  because  the 
notion  or  opinion  of  the  party  who  administers 
or  takes  it,  as  to  its  meaning  -and  object,  may 
be  very  different  from  the  opinion  of  a  court 
of  law  as  to  its  true  construction,  and  so  the  real 
intent  ef  the partv  may  be  muchlesscriminalthan 
the '  intent  whioi  is  imputed  to  the  oath  itself, 
by  the  judgment  of  the  CourL  Bu^  on  the 
other  hand,  while  the  act  is  foil  of  severity  on 
tAese  points,  it  is  lenient,  in  so  for  as  it  restricts 
the  charge  to  the  purport,  intendment, .  or  true 
meaiiingof  the  oath,  and  does  not  admit  of  aproof 
(Which  might  be  veiy  loose  and  unsatisfactory, 
and  very  hard  upon  the  prisoner  to  be  tried)of  an 
intention  on  his  part,  that  went  beyond  the  true 
meaning  of  the  oeta  which  he  administered. ' 


fir  ^Mmdermg  unla^  Oaths. 


18P] 

For  tbttftfit  docf  not  allow  it  to  be  proved, 
tlttt  ihoogfa  the  words  of  the  oath  were  appa- 
rently ioDooent,  yet  that  under  colour  of  an 
-inoocent  engagement  the  moat  criminal  inten- 
tions were  concealed  or  C07d!red.  In  what  way 
soever  te  pablic  prosecutor  may  make  a 
diaige  of  that  kind  (which  supposes,  no  doubt 
(hat  a  neat  crime  had  been  committed),  it  is 
plain  that  he  codd  not  make  such  a  charge 
under  this  acL  And  the  statute  tempeis  its 
own  severity  with  lenity  in  an6Aer  important 
circumstanoe.  Those  who  aid  and  assist  in 
administering  tbe  oath,  are  liable  to  the  punish- 
ment of  doth ;  but  those  who  were  present  at, 
and  consentinff  to  the  administering  the 
oath,  are  not  liable  as  for  administering  it,  and 
it  seems  to  have  been  the  intention  of  the  legis- 
lature that  they  should  not  be  so  liable. 

This  act  may  be  contrasted  with  that  which^ 
WIS  passed  in  the  37th  year  of  the  kin^,  in 
which,  though  the  punishment  to  be  inflicted 
upon  offenders  was  less  severe  (transportation 
for  seven  years),  there  is  a  much  ^^reater  an- 
xiety to  prevent  them  from  sscamng;  and, 
•coordinglv,  the  cases  in  which  mat  puniab- 
ment  may  be  inflicted  are  much  more  numerous 
and  comprdiensive.  It  is  enacted,*  ^^That 
any  person  or  persons  who  shall,  in  anymanner 
or  form  whatsoever,  administer,  or  cause  to  be 
administered;  or  beaidiuff  or  assisting  at,  or 
praad  and  conaadmg  to  the  administering  or 
taking  of  any  oath  or  engagement,  purporting 
or  mUnded  to  bind  the  person  taking  the  same 
to  engaee  in  any  mutinous  or  seditious  purpose ; 
or  to  disturb  the  public  peace  ;  or  to  be  of  any 
association,  society,  or  confederacy  formed  for 
any  sudi  purpose;  or  to  obey  the  orders 
OfT  commands  of  any  committee  or  body  of 
men,  not  lawfully  constituted,  or  of  any  leader 
or  commander,  or  other  person  not  having 
authority  b^  law  for  that  purpose ;  or  not  to 
iafomi  or  give  evidence  against  any  associate, 
confederate,  or  other  nerson;  or  not  to  reveal 
or  discover  any  unlawful  combination  or  con- 
Ibderacy;  or  not  to  reveal  or  discover  any 
illegal  act  done  or  to  be  done;  or  not  to  reveu 
or  discover  any  illegal  oath  or  engagement 
which  may  have  been  adnkinistered  or  tendered 
to  or  taken  by  such  person  or  persons,  or  to 
or  by  any  other  perKm  or  persons,  or  the 
import  of  aiqr  snob  .oath  or  engagement; 
ahalL  on  conviction  thereof,*'  &c.  And  by  the 
third  kection  it  is  enacted,  **  That  persons 
aiding  and  assisting  at,  or  prtitnt  at  and  am- 
aeafni^  to  the  admmbtering  or  taking"  of 
^he  oath,  &c.  shall  be  deemed  principal 
otfendei& 

Here  is  a  very  numerous  collection  of  crimes; 

and  as  to  the  oath  itself,  not  only  are  the 

persons  liable  to  the'  statutory  punishment, 

'  who  are  present  at  and  consenting  to  the  ad- 

ninistering  or  taking  of  it,  but  every  oath  is 

eomprehended,  where  it  is  of  the  nature  sped- 

•tfed,  either  in  its  purport  or  meaning,  or  where 

•It  is  intended,  by  the   par^   admioistering 

,^  37Geo.  3cd,  c.  133,  s.  1. 


A,  D.  1817. 


1100 


or'  taking  it  as..aq^  path  of  thai  deseriptaon, 
whatever  mn  be  .its  particular  words.  For 
the  terms  of  the  act  are  ^-  purporting  or  w- 
tendtd.Xo  bind  f  fmrporOMg  refers  to  thf  mean- 
ing of  the  oath;  tntaided  refers  to  the  intention 
of  the  party.  An  oath  purporting  to  bind,  is 
mtendea  hj  the  party  for  that,  purpqse.  The 
purport  of  the  oath,  and. the  intention  of  the 
par^,  may  be  diflertot;  but  the  statute  makes 
him  liable  for  both;  not  merely  the  meaning 
of  the  words  emplq^,  but- his  own  iptention 
(pQosibly  a  secret  intention)  in  using  thev, 
which  may  be  ynuch  more  miscbievons  or 
wicked  than  the  plain  or  true  meaning  of  the 
words.  Accordingly,  in  the  Engliui  case, 
which  was  tried  upon  the  37th  of  tte  king,  the 
meaning,  object,  and  intention  of  the  party, 
distinct  from  the  meaning. of  the  words,  was 
allowed  to  be  proved.  There  was  dearly  roosa 
in  that  act  for  the  construction  put  upon  it  bj^ 
the  learned  judge*  who  presided  at  the  triaL 
But  whatever  1^  the  constructioB  of  that  ad, 
there  is  not  the  least  room  for  such  a  oqnstnM>> 
tion  in  the  present  case,  where  the  words,  as 
well  as  the  objecte  of  this  statute, .  are  so 
very  diflerent  The  words  ^  potporting  or  in- 
tending to  bind,**  plainly  require  en  osM  whicb 
purports  or  intends  to  bind,  and  refer  e>- 
dusively  to  the  intendin|(  or  intent  of. the  oath, 
without  regard  to  the  intending  or  intent  of 
the  party,  further  than  his  intent  to  administer 
or  take  Uiat  oath.  And  this  was  apparently 
admitted  bv  Mr.  Solidtor  General,  when  he 
observed,  that  the  meaning,  purport,  and  in- 
tention of  the  oath,  are  to  be  referred  to  in 


V 

1 


this  argument,  and  not  any.  c^ospiracjf  or 
traneous  drcumstances.  Inos  there  is  a 
son  sufficiently  evident  for  ezchiding  a  proof 
of  circumstances  whoe  the  indictment  is  laid 
unon  the  52nd  of  the  king,  which  might  be 
admitted  where  the  indictment  is  laid  on- the 
37th  of  the  king.  And  if  it  be  oompetent 
under  the  37th  to  prove  the  intent  of  the 
party  by  dicumstanoes  whidi  do  not  appear 
from  the  oath,  it  was  intended  by  Uie  52|mI 
.  that  no  evidence  beyond  the  terms  of  the  oath 
itself  should  be  allowed  for  proving  the  tnteni 
of  the  party. 

If  the  observations  I  have  now  made  are 
well  founded,  the  public  prosecutor  is.  entirely 
wrong  in  attempting  to  introduce  in  the 
minor  proposition  of  the  indictment  a  long 
detail  of  circumstances,  with  no  other  object 
than  to  establish  the  supposed  wioked  intent 
of  the  prisoner,  by  evidence  thai  is  extraneous 
to  the  administering  of  the  nnlawlid  oath.  The 
prosecutor  ought  to  have  confined  himsdf  to 
that  charge ;  and  I  must  again  observe,  thai 
he  had  it  in  his  power  to  frame  an  indictment 
without  obiection,  by  the  proper  redtals  of  the 
statute  and  of  the  oath,  with  proper  aUegntioos 
that  the  oath  was  prohiUted  oy  the  act  of  naih- 
liament.  But  instead  of  adopting  thif  plain 
method  of  proceeding,  he.  has  d^K!q|ea  the 
pand  yriih  an  indictment  that  is  evposed  to 
mnumeiable^obieotiQns.    .;  , .      i  . 

*  Lord  Alvanley ;  C  JB.  4*0,  n.^ 


IMI 


57  GBOROB  Ifl. 


Tritd^mUkmOfg^ 


[IW 


noobjedtioii 


would  be  fiiiBcieiit  to'  ofest  the  iadieCtteiity  if 
BO  other  could  be  *  stated.  Bat  I  sheU  rtmark 
upoD  some  of  the  other  olgeotioiis.  A  good 
deal  was  said  upon  the  competency  of  a  gMie- 
-nl  charge  of  high  treason  made  in  an  indict- 
mept,  without  pointing  out  any  particular 
apecies  of  treason.  There  can  be  nodo«bt 
whatever^  that  where  tire  party  is  to  be  tried 
lor  the  crime  of  high  treaiony  a  general  charge 
of  high  treason  made  against  him  in  tiie  in- 
dictment would  be  good  for  nothing,  and 
would  at  once  be  dismissed.  For  there  are  so 
many  different  kindii  of  high  treason,  eadi  of 
them  distinguishable  from  all  the  rest,  that 
it  would  be  Just  as  welT  to  charge  a  man  with 
>  iMtring  committed  a  crime,  without  saying  what 
crime,  as  to  charge  him  with  haring  committed 
treason,  without  saying  what  treason.  But  it 
seems  Jto  have  been  thought  by  the  prosecutor 
that  in  this  indictment  it  is  sufficient  to  refer 
to  high  tteason  generally  without  distinguish* 
ing  between  one  treason  and  another,  b^use 
the  pandl  te  not  to  be  tried  for  committing  high 
treason,  but  for  baring  administered  an  oaUi, 
pfurporting  or  intending  to, bind  the  person 


IhaifejostMfoifedtolcablc.    Itseemathebto  beinlispiEtable,  thai 


the  species  of  treason,  should  hare  oeen  alleged 
or  assigned  in  this  indictment,  and  that  the 
totel  want  of  the  specification  in  it  is  as  olijeo- 
tionaUe  as  it  would  be  in  a  trial  for  high 
treason.  The  objection  is  founded  on  the  gieat 
and  indispensable  rale  in  criminal  justice,^thal 
the  panel  ought  to  have  notice  of  the  pvecise 
accusation  against  him ;  and  the  want  of  such 
notice  in  this  indictment  makes  the  case  pre- 
cisely the  same  as  if  the  prosecutor  had 
attempted  to  proceed  without  an  indictment 
at  all. 

Another  objection  to  the  indictment  was 
strongly  and  doquentlv  urged  by  Mr.  Crans- 
toutt,  that  you  cannot,  n>r  the  proof  of  a  crime 
that  is  charged^  prore  any  other  crime  that  is 
not  charged.  This  was  stated,  on  the  authori^ 
of  Mr.  Burnet,  and  of  long  practice.  But  one 
or  two  cases  were  cited  against  us  by  the 
counsel  for  the  prosecution.  I  do  not  admit 
that  these  cases  were  correctly  stated ;  but,  ai 
all  erents,  they  do  not  establish  that  the  pro. 
secutor  is  entided  to  prove  the  extraneous  cir^ 
cumstances  alleged  in  the  present  case.  One 
of  the  cases  related  to  the  uttering  of  foiged 


taking  the  same  to  commit  high  treason.  In  a  notes  within  Scotland,  and  it  was  said,  that  id 
ohaige  of  this  kind,  it  has  been  thought  unne-  order  to  prove  the  charge  of  uttering  in  Scot^ 
eessary  to  spedfy  the  treason  which  the  oadi .  land,  it  was  competent  to  prove  the  forgeiy  of 
purported  or  intended  to  bind  the  person  the  notes,  although  that  crime  was  committed 
taking  the  same  to  comnnt  But  it  seems  to  in  England.  That  was  a  case  of  crimm  cmh 
be  obrious,  that  there  is  precisely  the  same  fimwm,  in  which  the  criminal  act  was  begun  in 
reason  to  specify  the  treason  in  this  case  as  in  '  one  place^  ooniinmd  and  completed  in  another, 
a  trial  for  high  treason  itself.  If  it  be  unneces- ;  If  I  recollect  right,  a  case  occurred  some  years 


•salT  to  spedfy  the  treason  in  this  case,  would 
it  be  snfflcient  to  aUeffe,  that  the  oath  pur- 
ported or  Intended  to  bind  the  person  talcing 
nie  same  to  commit  a  crime^  without  spedfy- 


ago,  in  which  evidence  of  one  crime  to  prove 
another  was  allowed,  and  the  panel  was  con- 
victed on  a  proof  of  that  descriptioo.  But  that 
oonriction  was  not  approved  of  in  another 


wg  what  crime,  or  giving  any  notice  whatever  ,  quarter,  and  when  the  circumstances  attending 
to  the  pahel  of  the  nature  of  that  offenee  whleh  it  were  known,  the  man  got  a  pardon,  in  re»- 
Ihe  oath  purported  or  intended  to  bind  the  pect  of  the  manner  in  which  his  trial  had  been 
person  taking  the  same  to  commit!  It  is  i^ain,  conducted.  One  of  your  lordships  will  pro- 
-that  in  such  a  case  the  pinel  would  have  no  bably  support  me  in  this  account  of  the  case  to 
iiotie#  at  all  of  the  crime  for  which  he  was  to  ,  which  I  now  allude.  I  do  not  recdlect  the  name 
1m  kied.    An  oalh,  binding  the  penon  taking    of  the  party. 

^^  ii     --  i!!r  jJT*^  J^!wl5"  iL-^r«    1.U    «des  with  what  Mr.  Clerk  has  suted  ;  but  1 

s^'ss^sr/rrXir^ir^i  do.otp.rti<^i„.yr«»u..ith.ci«««.t«K«. 

defence  emnpletely  conclusive  against  the  ai-  Mr.  Clerk, — There  are  no  dkta  in  the  work 
leaation,  that  the  oath  led  to  the  commission  of  Mr.  Hume,  nor  in  that  of  Sir  Greorgo 
6r  one  crime,  would  be  no  defence  at  all,  if ,  M'Kenrie,  inferring  that  a  crime  m^j  be 
the  prosecutor  sliould  not  insist  on  that,  but  on  >  proved  by  another  crime  which  is  not  libdled ; 
a  diferent  sllegafion,  namely,  that  the  oath  led  and  the  authority  of  Mr  Burnet,  who  was  a 
to  the  commission  of  another  crime.  The  very  attentive  observer  of  the  proceedings  in 
panel  might  be  prepared  to  defend  'himself  criminal  cases,  is  directly  against  the  doctrine, 
as  to  the  application  of  the  oath  to  one-half  of .  He  lays  it  down  expressly,  that  one  crime 


the  erimes  &  the  Statute-book,  aiid  yet,  baring 
no  distiOct  Notice  of  the  prosecutor's  views, 
ndght  be  in  iio  state  o#  preparation  to  defeord 
himself  as  to  the  a|[yphcation  of  the  oath  to 
adiother  erim'^  of  which  he  had  no  notice,  and 
of  mtika  he  had  never  thought.  The  same  con- 
dd^tioii  shei^  that  among  the  different 
•pedee  iH  lrektf6n,that  jparticiilaT  spedes  should 
be  poiBtel  oat  in  the  mdietment,  to  which  the 
pKose^utor  is-  to  imist  that  the  oeth  was  appti^ 


cannot  "be  proved  by  another.  Thus  the  autho* 
•ri^r  as  well  as  Um  justice  of  the  case,  is  on  the 
sioe  of  the  accused. 

But  there  is  another  objection  to  a  moof  of 
the  oonspitacy  here  mentioned.  The  allegation 
is  in  snbatance  a  charge  of  high  treason  ;  and 
would  your  lordships  allow  sudi  a  charge  to  be 
proveo,  under  this  indictment,  In  direct  con* 
tradiction  to  the  Act  of  Pariiament  upon  whidi 
you  try  crimes  of  treason?  Without  the  inter- 


1091 


J«T  Admmslerittg  unlaHofid  Oatht. 


A.  D.  1S17. 


[104 


ventioa  of  a  mud  juiy,  treason'  cannot  be 
tried.  But  if  it  be  ntteriy  incompetent  to 
prove  an  allegation,  it  muist  be  equally  incom- 
petent to  maJce  the  allegation.  No  party  is 
entitled  to  allege  what  it  is  not  competent  for 
him  to  prove.  And,  if  the  public  prosecutor 
cannot  be  allowed  to  prove  the  crime  of 
treaaoUf  it  is  impossible  for  him  to  proceed  on 
this  indictment. 

To  another  objection,  no  sufficient  answer 
has  been  made,  that  if  the  proof  of  treason  is 
entered  on,  the  trial  is  a  pnblic  precognition; 
and  if  the  result  in  this  present  trial  does  not 
satisfy  the  prosecutor,  tne  panel  may  be  tried 
agiun  upon  the  same  &cts.  What  was  said  in 
answer  to  this?  From  the  very  terms  of  the 
act  of  parliament  the  panel  cannot  be  tried 
again  for  the  same  offence.  What  is  the  same 
•TODce  T  The  prisoner  is  now  to  be  tried  for 
administering  the  oath,  and  not  for  high  trea- 
son. The  two  crimes  are  altogether  different. 
The  prisoner,  if  he  is  acquitted,  cannot  be  tried 
for  hi|;h  treason,  on  account  of  his  having 
administered  a  treasonable  oath;  but  there  is 
nothing  in  the  statute  against  his  being  tried 
for  a  separate  treason,  extraneous  to  the  charge 
of  having  administered  the  oath.  But,  accord- 
ing to  the  idea  of  the  public  prosecutor,  the 
oath  may  be  connected  with  overt  acts  of 
treason,  which  might  be  distinctly  an#  sepa- 
rately charged;  and  if  it  were  permitted  to 
prove  thete  overt  acts  incidentally  in  this  trial,[the 
prisoner,  might,  on  such  a  precognition,  be 
afterwards  tried  for  treason. 

Another  objection  is,  that  the  requisite  speci- 
fication ci  die  aUegedconspiracy  has  been  with- 
hdd  by  the  prosecutor,  the  prisoner  not  having 
Veen  fovonned.  with  the  names  of  any  of  the 
persons  alluded  to  as  engaged  in  the  conspiracy; 
and  this  objection  is  of  itMlf  fatal  to  the  indict- 
ment. It  IS  stated  in  the  indictment,  that  the 
prisoner  wickedly,  &c.conspired,&c.  with  other 
evil-disposed  persons,  to  break  and  disturb-the 
pablic  peace,  &c.  But  no  one  of  the  persons 
engaged  in  the  conspiracy  is  mentioned.  Why  ? 
We  luive  not  even  been  told  that  the  public  prose- 
eatardoei  noi  kmow  the  names  of  these  supposed 
persons  ;  but  if  he  was  ignorant  of  their  names, 
■e  should  have  said  so ;  for  in  an  indictment, 
the  public  prosecutor  should  give  a  full  detail  of 
what  he  knows  to  the  panel,  for  the  preparation 
ofhis  defence.  When  a  fact  that  should  bostated, 
if  known  to  the  prosecutor,  is  unknown  to  him. 
He  sboald .  at  least  state  that  such  fact  is  un- 
known to  him.  He  should  do  evenr  thing  to 
apprise  the  accused  of  the  nature  of  the  proof 
vdijch  he  has  to  meet.  Where  that  is  not  fair- 
ly done,  the  prisoner  is  entitled  to  object  that 
be  has  not  received  the  notice  on  the  subject  to 
vrfaidi  he  is  entitled  by  law.  If  a  panel  be 
^taiged  with  a  wicked  conspiracy,  he  should  be 
udbrmed  of  the  other  persons  with  whom 
he  is  supposed  to  have  oeen  engaged^  if  the 
praeecntor  knows  who  they  are ;  and  he  ispre- 
mmeti  to  know  them,  if  he  ^pe9  not  state 
that  they  are  mdinown  to  him.  How  hard 
woold  it  be  if  the  law  were  otherwise !  •  A  con- 

VOL.  XXXIII. 


spiracy  charged  may  be  one  of  fifty  supposed 
conspiracies.  If  the  conspiracy  is  not  identi- 
fied by  the  names  of  the  persons  engaged  in 
it,  how  can  the  prisoner  know  what  the  prose- 
cutor really  means  to  charge? 

The  other  objections  to  this  part  of  the  indict- 
ment, though  they  may  be  less  material,  are 
still  of  ver^  great  importance,  and  their  validity 
is  recognized  hr  Mr.  Hume,  who  employs 
many  pages  of  his  valuable  work  upon  ques- 
tions of  this  description. 

The  gentlemen  opposite  admit  that  fair  and 
reasoniJ»le  notice  ox  facts  must  be  given,  and 
that  Mr.  Hume  says  so.  He  does  indeed  say 
so.  But,  although  they  acknowledge  his  au- 
thority, they  assert,  that  such  notice  is  not 
always  necessary.  How  does  this  agree  with 
the  opinion  of  Mr.  Hnme^  who  says  eipressly, 
that  where  the  public  prosecutor  has  it  in  his 

Sower  to  mention  particulars,  and  where  his 
oing  so  may  be  essential  to  the  information 
of  a  panel  for  his  defence,  the  Court  will  not 
oblige  the  panel  to  answer  without  his  gating 
a  fuU  and  particular  statement  of  the  charge 
against  him. 

I  come  next  to  the  argument  maintained  on 
the  import  of  the  oath.  It  is  asserted,  that  an 
oath  in  certain  terms  was  administered  by  the 
panel.  I  do  not  profess  to  understand  the 
precise  meaning  of  this  supposed  oath.  It  is 
rather  loosely  and  indefinitely  expressed.  To 
understand  it  precisely  is,  however,  not  ab- 
solutely necessary  to  the  consideration  of  the 
question  before  the  Court,  Whether  this  be  a 
lawful  oath,  is  no^  the  question.  The  oath  may 
be  extremely  wicked,  and  perhaps  there  is  no 
one  who  now  hears  me  wno  does  not  think 
that  there  was  a  bad  intention  in  it.  But  that 
is  not  the  question  before  your  Lordships. 
The  question  is,  whether  thai*  oath  amounts 

TO  AV  OBLIGATIOH  TO  COMinT  HIGH  TREASON? 

Where  a  man  is  indicted  for  the  crime  of  mur- 
der, the  question  is  not,  Whether  he  has  been 
guilty  in  other  respects?  whether  he  has 
committed  a  robbery  or  any  other  crime  P — 
he  has  oidy  to  answer  to  the  indictment  for 
murder.  Ine  question  here  is.  Whether  the 
oath  did  purport  and  intend  an  obligation  to 
commit  high  treason?  For  the  oath  is  not  said 
to  be  an  ^ligation  to  commit  murder  or  other 
felony.  It  is  alleged  to  be  an  obligation  lo 
commit  tre^on,  and  to  that  allegation  the  ques- 
tion is  confined. 

The  averment  of  the  pnblic  prosecutor  upon 
this  point  is  expressed  thus  in  the  indictment, 
^^  which  oath  or  obligation  did  thus  purport 
or  intend  to  bind  the  persons  taking  the 
same   to   commit   treason,    by  effecting    by 

giysical  force  the  subversion  of  the  Established 
ovemment,  laws,  and  constitution  of  this 
kingdom." 

Mr.  Cranstoun,.  in  his  excellent  speech, 
completely  demonstrated  the  fuiUity  of  this 
averment,  both  in  its  form  and  in  its  sub- 
stance ;  but  it  appears  to  me  that  an  argument 
much  less  complete  and  powerful  would  have 
b«eQ  quite  somcient  in  such  a  case.    For  can 

O 


i 


195} 


57  GEORGE  III. 


THalo/miUamSdgdr 


ri90 


it  be  possible  to  sustain  an  indictment  aUeging, 
with  so  little  specification,  an  obligation  to 
commit  treason?  Who  does  not  know  that 
tbece  are  a  great  variety  of  treasons  distin- 
guished from  each  other  by  difference  of  species, 
in  the  same  mannerandto  the  same  effiectas  other 
crimes,  which  are  known  each  by  its  species 
and  so  distinguished  from  other  crimes  which 
do  not  belong  to  that  species  ?  Yet  the  indict- 
ment contains  nothing  to  mark  the  species  of 
treason  which  was  to  be  committed.  It  ap- 
pears from  his  words,  that  the  prosecnior 
wishes  to  charge  the  prisoner  with  a  delin- 

2nency  that  has  a  relation  to  some  treason,  bat 
lat  is  all.  His  meaning  goes  no  further; 
and  such  is  not  a  legal  meaning  when  express- 
ed in  an  indictment,  as  the  substance  of  a 
charge  to  be  tried.  Indeed,  it  is  so  indefinite, 
that  ]  do  not  understand  what  it  really  imports. 
Cleariy  it  does  not  sufficiently  describe  any 
known  treason.  It  seems  to  point  at  a  treason 
to  be  committed  by  levying  war.  But  is  there 
any  word  about  le^yin?  war  in  the  indictment? 
Not  one  syllable ;  and  yet  it  is  acknowledged 
by  every  authority  from  Coke  downwards^ 
that  where  a  man  is  tried  for  levying  war 
against  the  king,  the  levying  of  war  must  be 
specially  set  forth  in  the  charge ;  and  however 
brief  and  general  our  neighoours  may  be  in 
drawing  their  indictments  (and  they  are  more 
so  than  we),  this  specification  is  required,  that 
the  parties  have  conspired  and  actually  engag- 
ed in  levying  war  [Mr.  Clerk  here  referred 
to  Lord  Coke  and  Sir  Mathew  Hale,  and  made 
some  further  .observations  relative  to  a  charge 
of  levying  war.] 

All  this  shows,  that  if  in  the  present  case 
the  treason  to  be  committed  was  levying  war, 
that  species  of  treason  should  have  been  set 
forth.  But  in  this  indictment,  though  the  oath 
is  set  forth,  and  certain  words  are  used,  in- 
tended as  an  averment  of  its  criminal  ten- 
dency, the  averment  is  in  terms  so  vague  and 
general,  that  it  cannot  be  gathered  from  them 
what  the  prosecutor  means  as  to  the  species  of 
treason  which  the  prisoner  had  in  view. 

Thus  the  meaning  of  the  oath,  whatever  it  may 
be,  is  not  sufficiently  charged  in  an  indictment 
proceeding  upon  the  statute  52  of  the  king. 
And  though  an  exposition  of  its  actual  mean- 
ing may  be  attended  With  difficulty  (perhaps 
no  <^rtainty  can  be  had  in  expounding  it),  it 
is  easy  to  show,  that  it  cannot  be  regarded  as 
a  treasonable  obligation,  however  objection- 
able in  other  re8|>ects  your  lordships  may  thin^ 
it.  In  considenng  this  obligation^  I  shall  lay 
«iside  for  a  moment  two  circumstances  that  are 
immaterial  to  the  question.  Whether  it  is  an 
obligation  to  commit  treason  ?  one  is,  that  it 
is  an  oolA— another,  that  it  binds  to  secrecy; 
for  these  circumstances,  though  they  are  of  an 
aggravating  nature,  do  not  make  the  ohligaHon 
more  or  less  treasonable.  As  an  engagement 
may  be  treasonable,  without  being  in  the  form 
of  an  oath,  so  an  engagement  may  be  confirm- 
ed with  an  oath,  without  being  treasonable  or 
criminal  at  all.    In  one  remarkable  transac- 


I  tion  of  this  kind,  an  oath,  when  moposed  wss 
I  rejected  by  the  most  determined  or  the  con- 
spirators. 

**  No,  not  an  oath : 


what  other  bond 
Than  secret  Romans,  that  have  spoke  the  word. 
And  will  not  palter?^  * 

The  nature  of  a  conspiracy  is  the  same  witk 
or  without  an  oath,  though  an  oath  may  be  an 
aggravation  of  its  wickedness.  In  the  i^e»*' 
'  tion  whether  the  engagement  was,  to  commit 
the  crime  of  treason,  I  may  therefore  lay  dot' 
of  consideration  the  circumstance  that  it  was- 
in  the  form  of  an  oath.  Again,  an  oath  o£ 
secrecy  may  be  wicked,  even  although  the  ia^ 
tention  of  the  persons  who  t^e  it  is  innocent 
in  other  respects ;  and  it  will  not  make  an  en-^ 
gagement  or  obligation  treasonable  or  othei^ 
vrise,  that  the  parties  to  it  were  sworn  to  se* 
crecy.  Ihe  question  as  to  the  tme  nature  of 
the  obligation,  as  being  treasonable  or  not 
treasonable,  evidently  caimot  depend  upon 
the  secrecy  to  which  the  parties  were  sworn. 
The  form  of  an  oath,  and  an  oath  too  of  se* 
crecy,  may  and  will  greatly  aggravate  the  o& 
fence  that  is  committed  by  entering  into  way 
conspiracy,  whatever  its  illegal  object  may  be. 
But  neither  the  oath  itself,  nor  the  obligatioa 
of  secrecy,  will  make  that  treason  which  is  not 
treason,  nor  change  an  obligation  to  commit 
any  illegal  act  or  crime,  in  itself  not  treason, 
into  an  obligation  to  commit  the  crime  of  high 
treason. 

Keeping  these  important  considerations  in 
view,  that  an  engagement  may  be  very  crimi^' 
tial  without  being  treasonable — ^that  die  int^- 
vention  of  an  oath  does  not  make  it  treason* 
able, — ^and  that  even  an  oath  of  secrecy  cannot 
have  the  effect  to  change  a  crime,  how  wicked 
and  dangerous  soever,  into  high  treason,  if 
the  crime  is  not  in  itself  high  treason,  but  a 
crime  of  another  character  and  description, — ^I 
shall  offer  some  remarks  upon  the  terms  of 
this  oath.  And  here  I  roust  repeat,  that  the 
oath  may  admit  of  no  certain  or  precise  con- 
struction. It  may  be  understooa  in  twenty 
different  senses  by  twenty  different  persons. 
Perhaps  no  two  men  wonld  agree  with  eadi 
other  as  to  it»  precise  meaning.  But  my  p»re- 
sent  task  is  not  to  show  the  precise  meaning 
of  the  oath,  but  a  different  and  an  easier  task, 
namely,  to  show  that  it  does  not  import  an 
obligation  to  commit  high  treason.  For  this 
purpose-  I  shall  offer  a  very  few  remtiks 
upon  it. 

Nothing  can  be  known  of  the  nature  of  this 
engagement,  but  from  the  words  of  it.  The 
party  binds  himself  by  an  oath,  and  the  first 
part  of  his  obligation  is  expressed  iii  theta 
words :  ^  That  I  will  persevere  in  my  endea-» 
vouring  to  form  a  brotherhood  of  affection 
amongst  Britons  of  every  description  who  are 
considered  worthy  of  confidence ;  and  that  £ 
will  persevere  in  my  endeavours  to  obtain  for- 

*  Shaksp.  Jul.  Cses.  Act  2;  Scene  1. 


t97] 


Jot  Mminuitrhig  unlatioful  Oaihs, 


A.D.  I8I7. 


1198 


all  tke  peofle  m  Great  Britain  and  Ireland, 
not  diaqnaiified  by  crimes  or  insanity,  the 
elective  franchise  at  the  age  of  twenty-one, 
vilh  free  and  eqaal  representation,  and  annual 
parliaments."  The  purposes  here  expressed 
are,  I  piesame,  innocent  of  treason,  though  it 
wonld  not  be  easy  to  tell  the  precise  meaiv* 
jng  of  the  words,  and  it  is  evident  that  they 
hsLve  no  precise  meaning.  On  the  con- 
tiaiy,  they  are  so  extremely  vague  and 
indefinite,  that  every  person  taking  such 
aa  oath  seems  to  be  at  full  liberty  to  put 
his  own  meaning  upon  it,  without  being  at  all 
exposed  to  the  reproach  of  refusing  tb  fulfil 
Ins  obligation.  Universal  sufir^e  and  annual 
paxiiaments  are  very  naturally  supposed  to 
Aave  been  the  objects  in  view ;  but  still  there 
is  nothing  in  the  engagement  itself,  nor  in  the 
manner  of  expressing  it,  tiiat  is  treasonable  or 
even  illegal  in  any  respect.  If  the  obligation 
had  stopped  with  the  words  to  which  I  have  just 
lefierred,  a  prosecution  for  aidministering  a  trea- 
aonable  oam  would  have  been  utterly  absurd. 
But  the  obligation  proceeds  with  other 
words,  which  are  supposed  in  the  indict- 
mast  to  be  treasonable,  ^  and  that  I  will 
SQpport  the  same  to  the  utmost  of  my  power, 
ei^er  by  moral  or  physical  strength  as  the 
case  may  require."  These  words  are  the 
foundation  of  Uiis  indictment,  and  the  material, 
if  not  the  only  c^estion,  as  to  the  relevancy, 
depends  upon  their  meaning,  or  rather  upon 
die  question,  whether  they  sidmit  of  no  mean- 
ing or  construction  but  one,  the  meaning 
alleged  by  the  prc^ecutor,  who  argues.,  that 
they  purport  and  intend  to  bind  the  party 
taking  the  oath  to  commit  the  crime  of  high 
treason.  It  is  to  be  considered,  whether  the 
words  have  that  treasonable  meaning,  or  if  that 
ia  not  their  meaning,  it  is  evidently  of  no  con* 
sequence  what  they  mean. 

The  words  of  the  oath  now  under  considera- 
tion bind  the  party  to  wpport  the  uxme ;  and 
there  has  been  some  argument  as  to  the  mean- 
ing of  supporting  the  uane,  as  the  words  occur 
in  this  part  of  the  oath.  It  was  said  for  the 
prisoner,  that  when  taken  along  with  the  pre- 
vious words  of  the  oath,  the  meaning  of  the 
whole  is,  that  the  party  should  persevere  in  his 
ehdeavours,  and  in  particular,  his  endeavours 
to  obtain  annual  parliaments  and  universal 
iufirage,  and  also  to  support  the  same,  namely, 
the  annual  parliaments  and  universal  suffrage, 
when-  obtained  and  recognized  by  law.  Ao^ 
ooiding  to  this  construction,  the  oath  in- 
tended any  thing  but  treason.  It  was  to  sup- 
port a  l^al  establishment  when  it  should  be 
obtained,  and  not  even  to  support  an  attempt, 
though  legal,  to  obtain  a  change  of  the  exist- 
lag  laws.  And  this  view  of  the  oath  seems  to 
be  perfectly  well-founded.  On  the  one  band, 
there  is  an  mcbngmity  in  saying,  that  the  party 
will  support  his  own  endeavours ;  and,  on  the 
tither,  the  expression,  **  support  the  same,'^  is  a 
relative  thai  can  only  apply*  to  the  last  antece- 
dent, unless  it  appears  m>m  the  grammatical 
«Mistxiictioii,  or  ttou^  the  meaning  of  the  con- 


text, that  the  relative  necessarily  applies  to 
former  antecedents.  But  that  is  not  thecase  here. 
There  is  a  disjunction,  not  only  in  the  sense, 
but  in  the  grammatical  construction,  of  the 
subject  of  annual  parliaments  and  universal 
snfnrage,  from  the  previous  part  of  the  oath. 
The  more  natural  construction  of  the  obliga- 
tion  to  ^  support  the  same "  is  obtained, 
therefore,  by  referring  it  to  a  support  of  the 
wished-for  changes  when  recognized  by  law. 
And  there  is  another  consideration,  which 
leads  to.  the  same  determination  of  the  ques- 
tion. There  are  many  rules  for  the  interpreta- 
tioapf  words ;  but  the  great  rule  of  interpreta- 
tion in  a  criminal  charge  is,  that  in  case  of 
doubt,  that  construction  which  is  roost  favour- 
able to  the  accused  must  be  adopted.  And  if 
the  prisoner  is  entitled  to  the  benefit  of  the 
rule  I  have  just  mentioned,  J  cannot  see  much 
difference  betwec-n  the  interpretation  offered 
on  his  part,  and  that  which  has  been  contend- 
ed for  by  the  prosecutor.  For,  whether  the 
phrase,  **  support  the  same/'  shall  be  referred 
back  merely  to  the  proposed  changes>  when 
obtained,  or  to  the  endeavours  to  produce 
them,  still  it  must  be  held,  that  the  support  to 
be  given  is  intended  as  a  legal,  and  not  as  an 
illegal  support,  and  rather  as  a  support  of  the 
law  itself,  to  be  appealed  to  in  every  stage  of 
bis  endeavotirsby  the  person  taking  the  oath, 
than  as  a  support  of  illegal  attempts  to  over- 
turn it. 

But  the  argument  of  the  prosecutor  is,  that  the 
clauses  now  under  consideration' do  not  merely 
bind  the  person  taking  the  oath,  to  support 
his  endeavours  at  innovation,  but  to  ''  support 
the  same  to  the  utmost  of  his  power,  either  by 
moral  or  physical  strength  as  the  case  may 
require.''  The  prosecutor  seems  to  think,  that 
these  words  complete  the  treasonable  obliga- 
tion, and  leave  no  doubt  whatever  as  to  the 
meaning  either  of  the  party  who  administered, 
or  of  the  party  who  took  tne  oath.  That  there 
should  be  no  doubt  as  to  the  meaning  of  these 
words,  appears  to  be  not  a  little  extraordinary, 
when  it  is  considered,  that  if  they  have  any 
meaning  at  all,  it  is  a  meaning  as  vague,  in« 
definite,  and  uncertain,  as  can  be  imagined. 
Yet  the  prosecutor  thinks,  that  tliey  can  mean 
nothing  but  treason,  and  he  will  not  allow 
that  any  other  meaning  can  be  put  upon  them. 
Even  the  uneducated  people,  for  whose  use  the 
oath  was  contrived,  must,  without  all  doubt, 
have  understood,  that  it  was  the  purport  of 
these  words  to  bind  them  to  commit  treason ! 

These  assertions  are  finely  exemplified  by 
the  abortive  attempt  made  in  the  iudictment, 
to  put  any  intelligible  meaning  upon  the  words. 
The  prosecutor  has  not  been  able  to  apply 
them  to  any  description  of  treason,  excepting 
that  constructive  treason,  which  he  would  re- 
vive after  it  has  been  abolished  for  several 
centuries.  And  here  it  is  proper  to  notice  an 
inexcusable  gloss  in  the  indictment,  as  to  the 
misaning  of  the  words  now  under  consider* 
ation.  The  words  of  the  oath  are,  f^Iwil) 
sapport  tiie  same  to  the  utmcet  of  my  power, 


199] 


57  GEORGE  III. 


trUd  of  WaUam  Edgar 


raoo 


cither  by  moral  or  physical  itrtngthf*  but  it  is 
alleged  in  the  indictment,  that  the  treason  was 
to  be  committed,  ^*  bv  effecting  by  physical 
foiie,  the  subTersiott,  &c.  Here  the  word 
itrenjgih  is  changed  into  the  wordybrce,  a  word 
of  a  different  meaning.  It  has  been  said,  that 
th^  words  are  synonymous.  If  that  is  the 
case,  why  change  the  one  for  the  other?  But 
they  are  not  synonymous.  It  is  very  true,  that 
on  some  occasions  either  word  may  be  used, 
without  much,  if  any,  difference  of  meaning. 
But  the  same  thing  may  be  said  of  words,  that 
so  far  from  being  synonymous,  have  significa- 
tions that  are  very  different.  The  distinction 
between  strength  and  force  is  quite  obvious. 
Strength  refers  to  jKntwr,— force  to  the  violeni 
$me  of  that  power.  Force  always  implies  vio- 
lence, but  strength  does  not.  A  precept  in 
the  Holy  Scriptures  is  thus  expressed,  '*  Thou 
shalt  love  the  Lord  thy  God  with  aU  thy  heart, 
and  with  all  thy  itrengtk."  How  would  this 
passage  read  with  the  word  force  instead  of 
the  word  itrength?  To  support  with  moral 
and  physical  strength  does  not  mean  that  vio- 
lence is  to  be  used  at  all.  So  far  from  mean- 
ing that  violence  is  to  be  used  in  attacking 
others,  it  does  not  necessarily  mean  thai  vio- 
lence which  may  be  used  in  resisting  the 
violent  attacks  of  others. 

Thus,  it  has  been  assumed,  with  very  little 
ceremony  indeed,  that  the  moral  and  physical 
strength  referred  to  in  this  oath,  was  to  be 
applied  for  the  purposes  of  treason.  It  seems 
to  DC  just  as  reasonable  to  take  it  for  granted, 
that  the  moral  and  physical  strength  was  to  be 
employed  in  the  commission  of  any  other  crime. 
Can  a  reform  in  parliament  be  promoted  only 
by  the  commission  of  treason  ?  No,  it  will  be 
answered ;  but  treason,  if  it  was  useful  or  ne« 
cessary,  was  to  be  committed.  Then,  if  the 
parties  wer^  not  to  shrink  from  the  crime  of 
treason  if  necessary  for  the^e  purposes,  it  must 
be  supposed  that  they  would  have  been 
equally  ready  for  the  commission  of  any  other 
crimes.  But,  I  ask,  whether,  according  to  the 
meaning  of  this  oath,  the  parties  who  took  it 
were  bound  to  commit  murders,  robberies, 
thefts,  eveiy  sort  of  crimes,  in  order  to  pro- 
mote reform  in  parliament?  Is  it  possible 
that  any  human  Deing  can  be  so  destitute  of 
charity  and  common  sense  as  to  put  that  con- 
struction upon  the  oath  ?  When  I  bind  my- 
self to  forward  the  purposes  of  reform  to  the 
utmost  of  ray  power,  by  moral  and  physical 
strength,  am  I  bound  to  commit  all  or  any  one 
of  the  crimes  which  have  been  mentioned? 
Must  I  rob  on  the  highway  in  order  to  promote 
annual  pariiaments  and  universal  suffrage? 
And  if  the  oath  is  not  an  obligation  to  commit 
crimes  generally,  is  it  not  absurd  to  say,  that 
it  is  an  obligation  to  commit  the  greatest  of  all 
crimes,  the  crime  of  treason  ?  To  maintain  a 
proposition  so  monstrous,  is  the  best  example 
to  prove  the  danger  and  atrocity  of  charsres  of 
constructive  treason.  Suppose  one  of  the 
persons  who  are  stated  in  the  indictment  to 
nave  be^  engaged  in  a  conspiracy;  bat  whose 


names  4rt  not  commuoicated,  had  been  told 
that  the  oath  being  an  obligation  to  support 
the  plan  of  annual  parliaments  and  univemd 
suffrage  to  the  utmost  of  his  power,  by  moral 
and  physical  strength,  so  he  was  required  to 
commit  some  great  crime,  an  assassination  for 
example.  If  such  a  conversation  among  these 
conspirators  can  be  supposed,  the  person  ad* 
dressed  might  surely  answer,  I  engaged  to  do 
every  thing  in  my  power  to  obtain  annual 
parliaments  and  universal  suffrage,  but  I  have 
not  engaged  to  do  any  thing  that  is  against 
law — ^there  is  no  such  obligation  in  the  oath. 
Could  any  one  of  the  fraternity  have  replied, 
you  are  bound  by  the  obligation,  and  must  now 
perform  the  part  you  have  undertaken :  This 
assassination  wili  support  the  cause  of  univer- 
sal suffrage;  and  it  is  an  act  within  your 
power.  This  reasoning  would  hardly  serve  ; 
and  if  there  is  no  obligation  to  commit  a  great 
crime,  there  is  just  as  little  to  commit  a  small 
erime.  The  oath  does  not  purport  or  intend  to 
bind  the  party  taking  it  to  commit  any  crime 
whatever,  or  even  to  infringe  the  slightest  rule 
of  morality. 

Nor  is  there  any  difference  between  a  mere 
paction  in  such  a  case  and  an  obligation 
strengthened  by  an  oath,  how  tremendous 
soever.  As  to  the  present  question,  the  cases 
are  quite  the  same. 

But  it  is  said,  that  if  the  intentions  of  the 
parties  were  so  innocent,  why  take,  an  oath  ? 
Why  this  obligation  to  secrecy  ?  I  have  an- 
swered that  sdready.  I  do  not  know  why 
there  was  an  oath  at  all.  I  do  not  know  why 
it  was  an  oath  of  secrecy.  I  have  heara, 
indeed,  that  some  politicians  have  not  the 
most  absolute  confidence  in  each  other. 
There  are  animals  known  by  the  name  of  rats, 
of  whom  I  sometimes  read  in  the  newspapers, 
who  are  said' even  to  infest  a  certain  great 
assembly.  Some  of  those  who  were  engaged 
in  this  association  may  perhaps  have  suspected 
that  animals  of  that  species  might  get  amongst 
them,  and,  in  order  to  prevent  such  an  acci- 
dent, they  had  recourse  to  the  oath.  Why 
was  there  an  oath  of  secrecy  ?  I  see  no  rea- 
son why  they  should  have  bound  themselves 
to  secrecy,  ant  is  secrecy  to  imply  the  great- 
est atrocity  of  conduct?  If  they  wished  fbt 
secrecy,  does  it  necessarily  follow  that  they 
were  to  commit  treason?  Many  enterprises 
require  secrecy.  That  there  were  persons 
whom  they  did  not  wish  to  offend,  might  be  a 
sufficient  reason  for  their  secrecy.  .  Jt  would 
be  very  unsafe,  indeed,  to  infer  the  illegality 
of  any  combination  from  the  circumstance 
that  it  is  held  together  by  an  oath  of  secrecy, 
but  it  would  be  still  more  unsafe  to  infer  a 
treasonable  conspiracy  upon  such  flimsy 
grounds.  But  the  question  is  not,  Whetiier 
the  obligation  to  secrecy  was  right  or  wrong  ? 
The  only  question  is.  Whether  Uiere  is  in  this 
oath  an  obligation  to  commit  treason?  The 
question  is  not.  Whether  the  panel  committed 
treason  in  any  way?  but  it  is.  Whether  .there 
is  in  the  oath  any  obligation  to  conait  trtSf 


SOI] 


Jor  AimmUUring  unkmfiit  Oaiki. 


•cm?  OntbeM  <iM«tk)D0^  I  think  it  iiiinec«8- 
lary  to  trouUe  your  lordslupft  witili  any  farther 
obsenrations. 

lard  Jtatke  Clerk, — ^After  the  uncommonly 
able  arguments  which  you  hare  heard  from 
both  sides  of  the  bar,  die  question  for  your 
lordships'  consideration  is.  In  what  manner 
jon  are  now  to  proceed  in  determining  whe- 
ther the  present  is  a  relcTant  indictment  P 

Lord  EermamL — ^I  had  no  doubt  in  my 
mindy  when  I  first  saw  the  Indictment,  that  it 
was  relevant.  But  a  great  deal  has  been  said 
to-day  on  the  competency  of  alleging  one 
crime  in  order  to  proTe  another.  I  have  formed 
no  opinion  on  the  objections  which  have  been 
stated  to  the  indictment ;  and  being  desirous 
to  understand  them  thoroughly,  I  wish  to  see 
them  discussed  in  informations.  Several  au- 
thorities have  been  cited,  particularly  by  Mr. 
CranstouUy  and  it  would  oe  proper  to  have 
them  fully  stated,  before  giving  any  opinion 
with  regard  to  them. 

Lord  GiiSa.'—I  am  of  the  same  opinion^ 
and  strongly  wish  to  see  Informations. 

Lord  FUmilfy. — ^I  am  particularly  anxious  to 
consider  that  point  which  we  have  heard  de- 
bated, and  which  is  of  general  importance — 
I  mean,  the  question  as  to  the  admission 
of  the  narrative  part  of  the  indictment  to 
proof. 

With  regard  to  the  other  objections,  I  have 
read  all  the  authorities,  and  should  have  been 
ready  to  give  my  opinion  upon  them.  It  does 
not  appear  to  me,  that  the  cases  of  forgery 
alludea  to  are  analogous  to  this  case.  If 
special  acts  of  treason  had  been  stated,  the 
introductory  part  of  the  narrative  might  have 
been  admitted  to  proof.  But  as  the  minor 
charge  is  not  treason,  but  a  different  erime, 
zny  mind  is  not  yet  made  up  to  the  opinion 
that  the  indictment  is  relevant.  As  far  as  I 
am  able  to  judge,  I  cannot  help  thinking  that 
the  panel,  if  acquitted  on  tms  indictment, 
might  be  again  tried'for  treason.    - 

.  Lord  JuUiu  Cierk. — I  am  much  in  the  situa- 
tion of  my  brother  who  has  last  spoken.  In 
leferenoe  to  the  meaning  of  the  oadi,  I  have 
given  great  attention  to  what  has  be^  said ; 
and  I  had  looked  into  authorities,  besides 
those  referred  to  to-day. 

As  -to  the  other  point,  it  has  been  most  ably 
argued,  and  is  deserving  of  most  serious  and 
d^iberate  attention — ^whether  it  be  competent 
to  let  the  public  prosecutor .  into  a  proof  of 
the  nairative  of  this  indictment.  Tnat  is  a 
point  which,  in  reference  to  ^is  important 
case,  and  all  other  cases  of  a  similar  nature,  is 
deserving  of  the.  most  mature  consideration. 
This,  too,  is  the  first  time  that  an  indictment 
has  been  broi^ht  before  us  founded  upon  this 
statnte.  I  am  .quite  clear,  therefore,  that  the 
solemn  and  regular  manner  of  deciding  the 
potottsin  question  is,  to  have  Informations 
mepai^d,  in  which  the  uguments  may  be 
Jiilly  czhansted.    .       . 


A.  D.  18I7. 


XHTBaLocirrom. 


lam 


9thJpra,  1817. 
^The  Lord  Justioe-Clerk,  and  Loids 
Commissioners  of  Justiciary,  ordain  par- 
ties' procurators  to  give  in  InfSmrinations 
upon  the  relevancy  of  the  Indictitaent,  to 
see  and  interchange  these  Informations, 
and  to  print,  and  lodge  the  saose  with  the 
Clerk  of  Court  in  older  to  be  recorded, 
and  that  within  three  weeks  ftom  this 
date :  Continue  the  diet  against  the  panel 
till  Monday  the  19th  day  of  May  next, 
at  ten  o'clock  forenoon,  in  this  place; 
and  ordain  parties,  witnesses,  assiiers, 
and  all  concerned,  then  to  attend,  each 
under  the  pains  of  law ;  and  the  panel  m 
the  mean  Ume  to  be  carried  baiw  to  the 
Castle  of  Edinburgh. 


COURT  OF  JUSnCLARY. 
May  19,  ISIT. 

Rt  Hon.  Dmd  Boyle^  Loid  Justice  Gerk. ' 
Lord  Semani, 
Lord  GiiHa. 
Lord  PUmiUy. 
Lord  Eaton. 

Comudfor  $he  Crotm. 

Rt.  Hon.  Alexander  MaconochUf  Lord  Advo^ 
cate  [afterwards  a  lord  of  Session  and  Justi- 
ciary, with  the  title  of  Lord  Meadowbank.] 

Jamet  Wedderbum^  Esq.  Solicitor-General. 

H.  Home  Drummondf  £sq. 

K  Warrender,  W.  S.  Agent. 

Cowmlfor  WUliam  Edgar, 

John  Clerk^  Esq. 
Geo.  Cranttoun,  Esq. 
Thoi.  Thornton^  Esq. 
Jamet  Monaieff',  Esq. 
FrandiJeJrwj  Esq. 
J.  P.  Grant,  Esq. 
Hemy  CodAum,  Esq. 
J.  J,  MfOTigfy  Esq. 

G.  TT.  Boyd,  W,  S,  Agent* 

William  Edgar  Vras  placed  at  the  bar. 

Lord  Juttice  Cierk, — William  Edgar,  attend 
to  the  indictment  against  you,  which  is  now 
to  be  read. 

**  William  Edgar  present  prisoner  in 
the  Castle  of  Edinburgh,  you  are  in- 
dicted and  accused,  at  the  instance  of 
Alexander  Maconochie  of  Meadowbank, 
his  majesty's  advocate,  for  his  m^esty's 
interest:  That  albeit,  by  an  act  pass- 
ed  in  the  fifty-second  year  of  his  pre- 
sent majesty's  reign,  intituled,  *  An  act 
to  rendet  more  efiectual  an  act  passed 
in  the  thirty-seventh  year  of  his  present 
majesty,  for  preventing  thf  .admuuSter- 


]         57  6BOBGB  IIL 

ingor  taking  nnUtwIbl  oaths,'  itistn/er 
aHa  enacted,  *  That  every  person  who 
shall,  in  any  manner  or  form  whatsoever, 
administer,  or  cause  to  be  administered, 
or  be  aiding  or  assisting  at  the  adminis- 
tering, of  any  oath  or  engagement,  pur- 
porting ot  intending  to  bind  the  person 
taking  the  same  to  commit  any  treason  or 
mvtr&ty  or  any  felony  punishable  by  law 
with  deadi,  shall,  on  conviction  thereof 
by  doe  eontse  of  law,  be  adjudged  guilty 
of  felony^  and  suffer  death  as  a  felon, 
without  benefit  of  clergy/  And  fui^ther, 
by  seetion  fbnrth  «f  the  said  act,  it  is  en- 
SK^ed,  ^  That  penona  aiding  and  assist- 
ing at  the  administering  of  any  such  oath 
or  engagement,  as  aforesaid,  and  per^ 
«>ns  causing  any  such  oath  or  engagement 
to  be  administered,  though  not  present  at 
the  administering  thereof,  shall  be  deemed 
principal  offenders,  and  shall  be  tried  as 
such ;  and  on  conviction  thereof  by  due 
course  of  law,  shall  be  adjudged  guilty  of 
felony,  and  shall  suffer  deaui  as  felons, 
without  benefit  of  clergy ;  although  the 
persons  or  person  who  actually  adminis- 
tered such  oath  or  engagement,  if  any 
such  there  shall  be,  shall  not  have  been 
tried  or  convicted.'  And  further,  by  sec- 
tion sixth,  of  the  said  act,  it  is  enacted, 
*  That  any  engagement  or  obligation 
whatsoever,  iii  th^  nature -of  an  oath,  pur- 
porting or  intending  to  bind  the  person 
taking  the  same  to  commit  any  treason  or 
murd^,  or  any  felony  punishable  by  law 
with  death,  shall  be  deemed  an  oath  within 
the  intent  and  meaning  of  this  act,  in 
whatever  form  or  manner  the  same  snail 
be  administered  or  taken,  and  whether 
the  same  shall  be  actually  administered 
by  any  person  or  persons  to  any  other 
person  or  persons,  or  taken  by  any  other 
person  or  persons,  without  any  adminis- 
tration thereof  by  any  other  person  or  per- 
sons:' Vet  true  it  is  and  of  vebitt, 
that  you,  the  said  William  Edgar,  are 
guilty  of  the  said  crimes,  or  of  one  or 
more  of  them,  actor,  or  art,  and  part: 
Jn  so  for  at  you,  the' said  William  Edgar, 
did,  at  secret  meetings,  and  on  other  oc- 
casions, at  Glasgow,  or  in  the  immediate 
vicinity  thereof,  in  the  course  of  the 
months  of  November  and  December 
1816,  and  of  January  and  February,  181 74 
wickedly,  maliciously,  and  traitorouslv 
administer,  or  cause  to  be  administered, 
or  did  aid  or  assist  at  the  administering, 
to  a  great  number  of  persons,  to  the 
sufnount  of  several  hundreds,  etn  oath  or, 
engagement,  or  an  obligation  in  the  nature 
of  an  oath,  bindhag,  or  purporting  or  in- 
tending to  bind,  the  persons  taking  the 
same  to  commit  treason;  which  oath, 
engagement,  or  obligation,  was  in  the 
fbllowing  terms,  or  t6  the  following  pur- 

Sort , — *  In  awful  presence  of  God,  I,  A 
I,  do  voluntarily  sw^ar^  Aat  I  will  per- 


TrialofmiUam^Edgdr 


[304 


ievere  in  my  endeavouring  ia  form  a 
brotherhood  of  affection  amongst  Britons 
of  every  description,  who  are  considered 
worthy  of  confidence ;  and  that  I  wiU 
persevere  in  my  endeavours  to  obtain  for 
all  the  people  in  Great  Britain  and  Ire- 
land^ not  disqualified  by  crimes  or  insa- 
nity, the  elective  franchise,  at  the  age  of 
twenty-one,  with  free  and  equal  represen- 
tation, and  annual  parliaments ;  and  that 
I  will  support  the  same  to  the  utmost  of 
my  power,  either  by  moral  or  physical 
strength,  as  the  case  may  require :  And 
I  do  further  swear,  that  neither  hopes, 
fears,  rewards,  or  punishments,  shall  in- 
duce me  to  inform  on,  or  give  evidence 
against,  any  meinber  or  members  collec- 
tively or  individually,  for  any  act  or 
expression  done  or  made,  in  or  out,  in 
this  or  similar  societies,  under  the  punish- 
ment of  death,  to  be  inflicted  on  me  by 
any  member  or  members  of  such  societies. 
So  help  me  God,  and  keep  me  stedfast.' 
Which  oath,  or  engagement,  or  obligation, 
to  the  foregoing  purport,  did  bind,  or  did 
purport  or  intend  to  bind  the  persons  taking 
the  same  to  commit  treason,  by  effecting  by 
physical  strength  the  subversion  of  the 
established  government,  laws,  and  con- 
stitution of  this  kingdom,  and  especially 
by  obtaining  annual  parliaments  and  uni- 
yersal  suffrage  by  unlawful  and  violent 
means.  And,  more  particularly^  you,  the 
said  William  Edgar,  did  upon  the  1st  day 
of  January  1817,  or  on  one  or  other  of  the 
days  of  tnat  month,  or  of  ]!)ecember  im- 
mediately preceding,  or  of  February  im- 
mediately following,  at  a  secret  meeting, 
held  in  the  house  of  William  Leggat, 
change-keeper  in  Ring-street,  Tradeston,- 
in  the  vicinity  of  Glasgow,  or  elsewhere 
at  Glasgow,  or  in  the  immediate  vicinity 
thereof,  wickedly,  maliciously,  and  traito- 
rously administer,  or  cause  to  be  admin- 
istered, or  did  aid  or  assist  at  the  admin- 
istering an  oath  or  obligation  in  the  terms 
above  set  forth,  or  to  the  same  purport, 
to  Peter  Gibson,  John  M'Lauchlane,  John 
Campbell,  and  Hugh  Dickson,  all  present 
prisoners  in  the  Castle  of  Edinburgh ;  as 
also  to  James  M^'Ewan,  now  or  lately 
carding-master  at  Humphries  Mill,  Gor- 
bals  of  Glasgow,  and  M^Dowal  Pate,  or 
Peat,  now  or  lately  weaver  in  Piccadilly- 
street,  Anderson,  tn  the  vicintty  of  Glas- 
gow, vrho,  conscious  of  their  guilt  in  the 
premises,  have  absconded  and  fled  from 
justice;  as  also  to  John  Conneltoti,  or 
Congleton,  now  or  lately  cotton-spinner 
in  Calton  of  Glasgow,  or  to  one  or  other 
of  them,  and  to  other  persons,  whose 
names  are  to  the  Prosecutor  unknown,  the 
said  oath,  or  engagement,  or  obligation, 
to  the  said  purport,  binding,  or  purporting 
to  hind,  the  persons  taking  the  same 
to  commit  treason,  as  said  is.  (9.)  '^^ 
further,  you,  the  said  Williain  Edgar  .did^ 


9051 


llll&llg^^OaiAf. 


A.  D.  Wrti 


upon  the  4di  day  of  Jtmiarj  1817,  or  on 
one  or  other  of  the  dvjn  of  that  monih,  or 
of  December  ifiiBediately  preceding,  or 
of  February  immediately  following,  at  a 
^eeret  meetiiig  held  at  the  house  of  Neill 
MwiD,  inn^keeper  aod  stabler  in  Ingram* 
street,  Glasgow,  or  elsewhere  at  Glasgow, 
or  in  the  immediate  vicinity  thereof, 
wickedly,  maliciously,  and  traitorously 
administer,  or  cause  to  be  administered, 
or  did  aid  or  assist  at  the  administeiing 
an  oath  or  obligation,  in  the  terme  above 
set  forth,  or  to  the  same  purport,  to  the 
said  Peter  Gibson,  John  M'Lauchlane 
John  Campbell,  Hugh  Dit^uran,  M^owal 
Pate,  or  Peat,  and  James  M'Ewan ;  as 
also  to  James  Hood,  present  prisoner  in 
the  Castle  of  Edinburgh,  Anarew  Som- 
merWlle,  John  Buchanan,  and  James 
Robertson,  all  now  or  lately  prisoners 
in  Che  Tdbooth  of  Glasgow,  or  to  one  or 
other  of  them,  and  to  other  persons, 
whose  names  are  to  the  prosecutor  un- 
known, the  said,  oath,  or  engagement, 
or  obligation,  to  the  raid  purport,  binding, 
or  purporting  to  bind,  the  persons  taking 
the  same  to  commit  treason,  as  said  is. 
And  you,  the  said  William  Edgar,  having 
been  apprehended  and  taken  before 
Daniel  Hamilton,  Esquire,  one  of  the 
SbertffiHsnbstitute  of  Lanarkshire,  did, 
in  his  presence,  at  Glasgow^  on  the 
6th  day  of  March  1817,  enxit  and,  sub- 
aeribe  a  declaiation ;  and  hai^g  been 
taken  before  Robert  HamilU^  fisqmra, 
Sheriff-depute  of  Lanarkshire,  yOu  did,  ia 
his  presence,  at  Glasgowy  upon  the  fth 
and  8th  days  of  March  1817,  emit  and 
subscribe  two  several  declarations ;  whidir 
declarations,  being  to  be  used  in  evidence 
against  you  at  your  trial,  will  be  lodged 
in  doe  time  in  the  han<u  of  the  Clerk  of 
the  High  Court  of  Justiciaiy,  before  which 
you  are  to  be  tried,  that  you  tnay  have  an 
opportunity  of  seeing  the  same.  At  least, 
times  and  places  foresaid,  the  said  oath, 
or  engagement,  or  obligation,  to  the  same 
pvirport,  binding,  or  purporting  to  bind, 
the  persons  taking  the  same  to  commit 
ireasoD,  as  said  is,  was  wickedly,  malici- 
oQsly,  and  traitorously  administered,  or 
csLuaed  to  be  administered;  and  some 
persons  did  aid  or  assist  at  the  adminis- 
tenng  thertof  ;^  and  you  the  said  Williahi 
Edgar  are  guiltj^  thereof,  actor,  or  art  and 
part  All  which  or  part  thereof,  bmg! 
nand  proven  by  the  verdict  of  an  asatze*, 
hekm  the  Lord  Justice  General,  the  X^brd 
JusticeCleik,  ind  Lords  Comraisiiioners  of 
Justiciaiy,  yoa  the  said  William  Eidgar 
ought  to  he  pQfdshed  with  the  pains  of 
law,  to  deter  others' nQm  committing  tfie 
like  crimes  in  all  time  coming. 

^  H.  Home  Druxk oiTo,  >1»  D/^ 

LIST  OF  WITNESSES. 

t.  Bfiiferi  HamUUmt  Esq.  sheriff-depafta.  of 
'      Lanarkshire. 


3.  Darnel  fioantoi/Era.  one  of  the  4i«ni^ 

substitute  of  Lanarkshire. 

3.  Dankl  WCaUum^  clerk  to  Joluji  Dryi^ale^ 

sheriff-clerk  of  Lanar^hirs^ 

4.  Matthew  Butms^  clerk  to  George  Salmond, 

procuratorufiscal  of  Lanarkshire. 

5.  Jckn  LeMUe,  derk  to  the  said  John  Xhj^^ 

dale. 

6.  Jo$eiA  Beidf  writer  ia  Glasggy, 

7.  Alexander  Cal4ar^  sh«rilMip«r  ia  Ghun 

gow. 

8.  Jaares  Z^omsoa,  derk  to  the  said  Joha 

Drysdale. 

9.  Jletander   Hynier,    ehange-keeper,    QM 

Wynd  of  Glasgow. 

10.  Marion  M^Laren^  0x  M*Lachla%  now  or 

lately  servant  to  the  said  Alexander: 
Hunter. 

11.  JbAnEo6er2Mm,  inn-keeper  and  altahl«r/>aln 

lowgate  Glasgow. 

12.  Jgne$  CampbeU,  wife  of  Thomas  IXmr, 

steam-boiler  makes  and  smith  at  GM-9 
wood  and  Company's  foundry  in  Huichr. 
esontown,  in  the  vicinity  of  Glasgow.    . 

13.  Janet  l^eauMj  now  or  lately  servant  ta 

Neill  Munn,  innkeeper  aad  stabler  in 
Ingram-street,  Glasgow. 

14.  AliMon  WUton,  now  or  lately  servant  to  the 

said  Neill  Munn. 

15.  Matthew  Fyfo,  spiritrdealer  in  Wilio^*. 

street,  Glasgow. 

16.  Jean  Boyd^  wile  of  the  said  Matthew  Fyfek 

17.  William  Leggatf  change-keepei;,  iio  Kin^. 

street,  corner  of  Centra-fUreet,  Tiadftth 
'  ton,  in  the  vicinity  of  Glasgow. 

18.  John  Mitchell,  we^ver^  residing  iRWilki*Vt 

Laod«  Charles-street,  Caltonof  Glasgow. 

19.  Eugh  Vkkfca,  present  prisoner  in  the 

Castle  of  Edinburgh. 

20.  Ptter  Oiifion,  present  prisoner  there. 

21.  John  M'Lauchlane,  present  prisoner  there. 

22.  IFt^iiam^ismion,  presei^t  prisaifier  (hate. 
28.  Jamet  Haoa,  pteaeat  prisoner  there. 

24.  John  Cam^Uf  present  prisoner  there. 

25.  nomas  Smclair,  present  prisoner  there. 

H.  Homb  DauMMOVD;  A,  J>. 

t  •  •   • 

LIST  OS   ASSIZS. 

County  of  Edinburgh, 

Francii  Carter^  Scdtf  of  BaUemo. 
Bichard  Wooley^  of  Whitehouse. 
Jame»  White^  tobacconist  in  Dalkeith. 
Robert  lyle^  baker  there. 
John  Woodj  merchant  there. 
JoAfi  Bfoidn,  farmer,  Carrington. 
Atudreo)  JohnUan,  farmer.  Primrose-bams. 

County  of  Haddington, 

William  Aicheton,  junior,  of  Dnunmore. 
John  SommerviU  Ox  Moreham. 
WUliam  Emfj  farmer,  Howden. 
John  Brodiey  £urmer.  West  Fentoa. 
Moheri  Hope,  fanner,  FentOn. 

County  of!  LinUtbgoio, 

WiUiamGUn  oiJAM», 


3071 


57  GEORGE  III. 


Tml  6/ WiOam  Edgar 


[308 


WiBiam  Diwirmy'ypmifer,  Bonnytoun. 
Jchn  Trotter^  fiinner  at  Stacks. 
JMfft  Toi/lory  residing  at  Blackness. 
George  TurvkuU^  fanner  at  Northbank. 

CUy  cf  Xdinburgkk 

Robert  Fraur^  jeweller  in  Edinburgh. 
noma  Bichardumy  merchant-tailor  there. 
J}amd  Whiiekmfy  watoh-maker  there. 
Peter  Feddie,  tronk-inaker  there. 
WUiiam  Thtiter,  upholsterer  there. 
Aletumder  BtmeU,  coach-maker  there. 
John  Inoerarityy  upholsterer  there. 
George  Yule,  meroiant  there. 
AleMmder  Jtfii&e,  saddler  there. 
John  Sieelf  confectionet  there. 
Jamee  hmee,  gunsmith  there. 
Darnel  Forreti,  hosier  there. 
Peter  Smoeny  saddler  there. 
George  Hunter,  merchant  there. 
Wilham  Ret$,  tailor  there. 
Cktrlee  M'Xeafiy  draper  there. 
JoHn  Laing,  saddler  there.    / 
John  M'^ereon,  tailor  there. 
Franek  Dmideonj  confectioner  there. 
WUliam  Cooper^  boot-maker  there. 
WUUam  Dwnbretky  hotel-keeper  there. 

TowneflMth, 

John  M^Kennef  merchant  in  Leith. 
Archibald  Clegkomy  corn-merchant  there. 
Thmm  MatrUmy  ship-builder  there* 
FUierte  Patereony  painter  there. 
CAorfef  Bobertion,  merchant  there. 
John  Sandertf  a^nt  there. 
JMi- Cir/cwer,  Wright  there. 

Ad.  Gilliu. 

d.  movtpsvmt. 

David  Dot7oias« 


Lord  Jmttke  CfeHfe.--William  Edgar,  what 
do  you  say  to  this  indictment? — ^Are  you 
^il^  or  not  guilly  of  the  charges  contained 
mitr 

WUUam  JS<(giar.— Not  guilty,  my  Lord. 

Mr.  Gronffotm.— The  prisoner  pleads  to  the 
indictment  which  has  just  been  read,  I  have 
to  state  to  your  lordships,  that  he  is  advised 
to  object  to  the  competency  of  the  present 
proceeding ;  and  I  humbly  submit  that  this  is 
the  proper  time  for  stating  «tbe  objection  to 
.  your  loraships. 

Your  lordihips  will  recollect  that  the  pri- 
soner at  the  bar  was  latelv  indicted  upon  the 
statute  the  52nd  Geo.  3 ,  mr  the  crime  of  ad- 
ministering unlawful  oaths,  binding,  or  pui^ 
porting  or  intending  to  bind,  the  takers  to 
commit  die  crime  of  treason.  That  indictment 
was  regularly  served  upon  the  prisoner— he 
was  brought  to  the  bar — ^he  pleaded  not 
guilty^-and  your  lordships,  upon  hearine  a 
debate  upon  the  relevancy,  appointed  inior« 
mations  to  be  giv^n  in,  and  continued  the 
time  for  doing  so  until  this  day. 

My  lords,  that  criminal  prosecution  is  still 


]  in  dependence  against  the  prisoner.  The  diet 
has  not  yet  been  deserted  so  far  as  I  know. 
I  need  not  tell  your  lordships,  that  his 
Majesty's  Advocate  cannot  desert  a  prosecu- 
tion, either  eimplkiter  or  pro  loco  et  tempore, 
without  the  permission  of  your  lordsnips. 
Bf  deserting  nmplicifer,  I  mean  here,  deserting 
with  a  view  to  try  upon  a  new  indictment  for 
the  same  crime. 

.While  the  first  prosecution  was  thus  in 
dependence,  his  Majesty's  Advocate  has 
thought  fit  to  eiecnte  a  second  indictment 
against  mv  client,  calling  him  to  answer  at 
your  bar  mr  precisely  the  same  crime  as  was 
charged  in  the  first  mdictment.  I  submit  to 
your  lordships,  that  this  proceeding  is  alto- 
gether incompetent — because  the  diet  in  the 
first  indictment  is  not  yet  deserted;  and  that 
it  would  be  equally  incompetent  to  proceed 
at  present  on  the  second  inaictment,  even  if, 
on  the  motion  of  the  lord  advocate,  the  first 
should  now  be  deserted.  I  shall  state,  in 
veiy  f^w  words,  the  grounds  upon  which  I 
think  our  objection  is  irresistible. 

It  is  known  to  your  lordships,  that  by  the 
criminal  law  of  this  country,  as  now  firmly 
established,  every  person  who  is  brought  to 
the  bar  upon  a  criminal  charge  ii  entitled  to 
have  the  indneuBoi  fifteen  free  da3rs.  What 
benefit  could  be  derived  from  the  indnda  if 
he  eouid  be  brought  to  trial,  and  during  the 
dependence  of  that  trial  induda  might  be 
running  against-  him  all  the  while  for  another 
trial  on  account  of  the  same  crime?  Why,  he 
would  be  placed  in  a  situation  in  which  the 
law  certamly  never  meant  him  to  be  placed ; 
he  would  be  perplexed  and  embarrassed,  by 
being  under  the  necessity  of  defending  twp 
actions  subsisting  together  at  one  and  the 
same  time.  Observe  how  far  this  principle, 
if  once  admitted  would  go.  The  prisoner  is  in« 
dieted,  he  is  brought  to  the  bar,  an  objection 
is  stated  to  the  relevancy  of  the  indictment, 
and  3rour  lordships,  after  an  argument  of  twelve 
hours  upon  the  relevancy,  find  the  indictment 
irrelevant.  The  next  moment  his  Majesty^s 
Advocate  takes  a  new  indictment  out  of  his 
pocket,  and  the  prisoner  is  immediately  put 
again  upon  his  trial  for  the  very  same  offence. 
Well,  the  second  dav  you  have  an  argument 
upon  the  rele?ancgr  of  this  second  indictment^ 
an  argument  which  also  lasts  twelve  hours; 
and  when  that  indictment  is  found  irrelevant^ 
what  happens  next?  A  third  indictment  is 
produced  by  his  Majesty's  Advocate,  and  he 
msists  that  the  prisoner  shall  again  be  tried. 
And  thus  there  might  be  fif&n  different 
indictments,  under  which  the  prisoner  is  ac* 
tnally  kept  upon  his  trial  for  fifteen  days, 
being  the  whole  mdueia  contained  in  the  first 
indictment;  and  upon  the  sixteenth  charge, 
the  panel  might  be  brought  to  trial  upon  a 
relevant  indictment,  and  without  having  had 
one  moment's  time  to  prepare  his  defence, 

I  may  be  told  that  this  is  stating  an  extreme 
case,  one  which  is  not  likely  to  happen.   Such  * 
a  case  certainly  may  not  happen  while  my 


te»} 


Jhir  AimmimvHg  mfa^j^  Ouihi. 


A.  D.  1817. 


{»!<» 


fiknd  is  loid  adiocilo  9  bttt  if  whm  I  Iwi^ 
•tated  ought  happen  in  ao  estpeme  case,  it  1% 
WMMigb  |br  my  ammeiit.  Eveiy  poisiUa 
dttojger  ol  tkis  koto  ooght  w  lie  guarded 
agaiMt,  ibr  expeneDce'-  .taaches  w  that  cri- 
niDa)  pBOWMtttioDS  are  often  reaoxted  to  Aom 
ambition^  ittreDge,  aad  other  impfoper  mo- 


Aa  %  geneial  rale,  therefore,  in  the.  law  of 
SootkocC  I  affirm  that  if  a  peiaoa  is  indicted 
%9K%.  crime,  aad  if  he  oomea  to  the  har,  and 
ple»ob  JO  that  indictment,  then  there  is »  a  de- 
pending psooem  apaioat  him,  imm^vahkk  he 
cattttbt  again  be  cited  tO'anawer  Tor  the  fame 
cikaige,  aad  in  that  way  be  deprived  entirely 
of  ih«  beneit  of  hii  MiCht*  Ine  moment  he 
baa  pleaded  to  hia  indictment,  it  ia  incompe- 
tent to  have  another  indictment  running 
aigainat  him  for  the  aame  ofibnee. 

There  are  variona  waya  in  which  I  might 

iilaatrate  the  haidihip  aad  oppieation  which 

wooUL  reaolt  Aom  a  difiereni  mle.    Sappoae 

a  pand  faas-pleaded  to  an  indictment  and  haa 

been  actually  pot  upon  his  trial  here,  if  the 

dfaiectton  whidi'  I.  am  now  stating  ia  not  a 

good  objection,  his  Mi^eat/s  Advocate  mi^ 

aaisa  another  indictment,  reqoiring  him  to  take 

hia  trial  at  a  distance^  for  instance'  at  Aher* 

deen,  the  day  after  the  diet  of  the  first  landict^ 

men^  whidi  is  to  be  tried  at  Edinburgh,  and 

ahat  i»  the  vaiy  purpose  of  d^eiting  the  fint 

indirtmeat  and  paoceeding  upon  the  second. 

In  thia  veiy  case  it  b  pomible  that  the  panel 

any  hare  fifty  .witnesses  to  examine,  and  of 

eonrae  he  ia  bound  to  have  Ihem  here  to-day 

in  caaa  the  trial  ahonld  go  on  on  the  fonaer 

indictmenl.    Bnt  if  the  fornier  is  deserted, 

and  a  new  one  called  at  Aberdeen  to-mortow, 

ia  what  manner,!  would  ask,. is  the  paod  to 

tianapnrt  his  wime^aea  toAberdeen?  ThetadMr 

cac  an  giren  by  law  for  the  very  purpose  of 

pwiferting  the  accused  against  surprises  of  dua 

land;  bnt  the  practice-alteBaipted  on  -the  part 

of  the  Oown  would  defeat  that  purpose. 

It  ia  in  .-vahi  to  aay  that  the  Court  would  io- 
tarfem  to  give  ledieas,  if  an  oppreasive  pio- 
needing  oriha aataie  I  hare  supposed  were  to 
he  attempled.  Ihat  plea  was  once  uiged, 
when  a  pioeecnter,  inaefiaaoe  of  all  law,  had 
jHt  given  the  eadiaaiy  iadbicHr,  and  I  am  sorry 
to  say,  thai  it  was  listaned  to  by  the  Conit. 
The  Kbel  oonta^ied  indbaur  of  twelve  daya 
on^;  and  .iribea  <tbe  panel  eomplained,  he 
waa  toldj  th«t  i£  he  had  applied  to  ^e  Court 
iw  hngfar  tiflM,  it  monld  have  been  allowed. 
The  olgeetion  was  eocoidingly  repelled,  bnt, 
aa  lfe«ilume  justly  observes,  it  was  most 
improperly  repelled^  2f  the  ordinary  rales  of 
JaWy  aelded  by  the  maclioe  of  centuries,  are 
4a  be  diapeaaed  witn»  and  a  priioner  lotted 
iDversipoathe.Cooit:foraadieaa,  iaitreimagb 
aaaaffithat.he  .wsllobtain  aaa  favour  wMt 
ha  in  icatifled  ito  teiMd  aa  a  right?  If  thia 
be  dia.eaae>  .all  lenuaty,  all  liberty  ia  at  aa 


Tins  vmiaasaad  very  gmathardahipa  would 
mialt,  if^paaems^  admit,  thAt  after  a  panoa 
VOL,  XXKIIL 


hatii^MM  to  one  erimjnal.prosec«^o,  and 
iwhi)e  it  is  in  dependence —for  example,  while 
ixiformations  are  preparipg^  on  the  relevancy 
«-4be  tnduci^  of  another  prosecution  for  thf 
same  crime  may  be  current. 

I  do  not  9ay  that  the  question  .which  I  am 
now  stating. to  your  loidshipa  has  been  de- 
cided in  (enganii  l^  the  jQQurL  If  it  has  so 
been  decided,  it  has  escaped  m  obaeryation, 
and  the  learned  counsel  upon  the  other  side 
,of  the  bar  will  mention  the  cases  in  jivhich  the 
objection  has  occurred,  and  has  been  repelled. 
For  any  thing  that  I  luiow,  there  may  he  in- 
.atances  of  trials  having  proceeded  on  indict- 
.ments  raised  in  the  same  manner  as  the  pre* 
sent;  but  tfiat  must  have  happened  where  the 
objection  waa  not  stated ;  and  you  will  ,easUy 
see,  that  in  many  cases .  it  might  be  for  the 
interest  of  the  panel  to  wave  .the  objection^ 
In  many  cases  a  prisoner  would  wi^h  to  be 
tried,  without  Any  indnKUBi  for  instance,  in  a 
charge  of  a  subordinate  or  inferior  nature^ 
there  may  often  be  an  interest  on  the  part  of 
the  prisoner  to  wave  thU  objection.  But  what 
I  found  upon  is  thia,  tht^  as  foraa  I  have  been 
able  to  discover,  this  objection  haa  not  been 
stated  and.repelled  ia  lenaiiai. 

Bnt. though  I  cannot  refer  to  a  precedent  in 
which  it  haa  been  sustained,  I  think  there  has 
been  a  case  decided  which  apjpears  to  me  te 
proceed  on  the  vmy  same  prmdple^  and  to 
jdlnatrate  aad  support  the  argument  which  I 
■have  now  the  honour  to  maintain.  .There  are 
instances  of  hdf  a  do«en  indictments  having 
been  served  upon  a  prisoner,  one  after  anothea, 
.and  calling  him  to  attend  at  the  bar  at  diS- 
•ferent  times ;  and,  in  particular,  that'  happen^ 
ed  in  the  celebrated  caae  of  colonel  Francis 
X^harteris.  Four  difierent  libela  were  executed 
.against  'him  to  take  his  trial  for  the  same 
eriine,  all  cdluig  him  to  appear  ia  Court  at 
diffi»ei}t<tiniea;  .and  when  he  appeared  upoa 
the  first  of  thesd  indictaoeats,  he  stated  that 
•ha  ^as  act  beand  to  plead  at  all,  until  the 
4ord  advocate  selected  the  indictaftent  upon 
whtoh  he  intended  to  oarry  oa  the  trial;  and 
ihe  Court  found,-  or  it  was  admitted  on  the  peat 
of  the  prosecution,  that  this  was  necessary^; 
and  accordingly,  befoide  the  trial  prooeeded, 
it  was  necessasy  to  desert  three  of  the  indict 
ments-»and  when  they  wareao  deseoted,  then, 
and  not  till  then,  vraa  ooleael  Charteria  rch 
quired  4o  plead. 

Is  not  that  case  precisely  the  same  m  trta- 
(Buk  as  the  present  P  For,  if  before  colonel 
Cnarteris  pleaded,  every  indictment,  then  in 
^dependence  but  one  was  necessarily  deserted, 
— ^now  that  my. client  haa  pleaded,  there  being 
but  one  indictment  when  he  pleaded,  it  fol- 
iows  for  the  same  reason,  that  other  three  in- 
dictaaenta  cannot  be  hung  over*  his  head.  K 
yon  ,do  not  jupport  this  objection,  you  place 
n^  dient  in  that  situation  in  which  it  was 
deoided  that  colond  Charteria  could  not  be 
placad.  If  ooload  Charteria  had  plead^lo 
hia  hrat  indictment,  while  the  others  li^em  in 
snmense,  he  would  have  been  in  the  siiuation 


3071 


57  GEORGE  IIL 


TrM  of  Wmam  Edgar 


[308 


WUHam  Bmmon^jom^^  Bonnytoun. 
Jchn  TVntter^  former  at  Stacks. 
JMfft  Toifhry  rending  at  Blackness. 
George  iSiirviiuUy  farmer  at  Northbank. 

CUy  of  Edkiburgk, 

Robert  FroKTy  jeweller  in  Edinburgh. 
l%oma»  BicharAony  merchant»tailor  there. 
Damd  WkiieknPy  watch-maker  there. 
Peter  FeddSe,  tronk-maker  there. 
WiUiam  Droiter,  upholsterer  there. 
Aletutnder  lUmtUf  coadi-maker  there. 
John  Inoerarity,  upholsterer  there. 
Cfeorge  Yule,  merdiant  there. 
Alexander  Aindie,  saddler  there. 
John  Sieelf  confectionet  there. 
Jamee  Iimet,  gunsmith  there. 
Darnel  Forreti,  hosier  there. 
Peter  Saweriy  saddler  there. 
George  ^mier^  mer^ant  there. 
WU&m  Ron,  tailor  there. 
Ckarlee  WLun,  draper  there. 
John  Laingf  saddler  there. 
John  M^PiUroony  tailor  there. 
Pnmdk  Tknidaonj  confectioner  there. 
WUUom  Cooper^  boot>niaker  there. 
WUUam  Dumbrecky  hotel-keeper  there. 

ToumofLeith, 

John  M^Kennef  merdiant  in  Leith. 
Archibald  Clegkomy  com-merchani  there. 
Thinmt  Morion^  slup-builder  there. 
Rohert$  Patereooy  painter  there. 
C4aHSef  Boberteon,  merchant  there. 
John  Sandertf  a^nt  there. 
JMii- Cir/cweri  wnght  there. 

Ad.  Gillibs. 

d.  movtpbhmt. 

David  Dot7oia8. 


Lord  Jtatiee  CfeHfe.--William  Edgar,  what 
do  you  say  to  this  indictment? — ^Are  you 
guilty  or  not  guilty  of  the  charges  contained 
mitr 

WUlimn  JS<(g)ar.— Not  guilty,  my  Lord. 

Mr.  Gmmifotm.— The  prisoner  pleads  to  the 
indictment  which  has  just  been  read,  I  hare 
to  state  to  your  lordships,  that  he  is  advised 
to  object  to  the  competency  of  the  present 
proceeding ;  and  I  humbly  submit  that  this  is 
the  proper  time  for  stating  «the  objection  to 
.  your  lorafihips. 

Your  lordships  will  recollect  that  the  pri- 
soner at  the  bar  was  lately  indicted  upon  the 
statute  the  52nd  Geo.  3 ,  for  the  crime  of  ad- 
ministering unlawfol  oaths,  binding,  or  pur- 
porting or  intending  to  bind,  the  takers  to 
commit  die  crime  of  treason.  That  indictment 
was  regularly  served  upon  the  prisoner — ^he 
was  brought  to  the  bar — ^he  pleaded   not 

Snilty — and  your  lordships,  upon  hearing  a 
ebate  upon  the  relevancy,  appointed  infor* 
mations  to  be  giv^n  in,   and  continued  the 
time  for  doing  so  until  this  day. 
My  lords,  that  criminal  prosecution  is  still 


in  dependence  against  the  prisoner.  The  diet 
has  not  yet  been  deserted  so  for  as  I  know. 
I  need  not  tell  your  lordships,  that  his 
Majestjr's  Advocate  cannot  desert  a  prosecu- 
tion, either  impHeUer  or  pro  loco  et  tempore, 
without  the  permission  of  your  lord^ips. 
Bf  deserting  emqUiciter,  I  mean  here,  deserting 
with  a  view  to  try  upon  a  new  indictment  for 
the  same  crime. 

.While  the  first  prosecution  was  thus  in 
dependence,  his  Majesty's  Advocate  has 
thought  fit  to  eiecute  a  second  indictment 
against  my  client,  calling  him  to  answer  at 
your  bar  ror  precisely  the  same  crime  as  was 
charged  in  the  first  mdictment.  I  submit  to 
your  lordships,  that  this  proceeding  is  alto- 

S ether  incompetent—- because  the  diet  in  the 
rst  indictment  is  not  yet  deserted ;  and  that 
it  would  be  equally  incompetent  to  proceed 
at  present  on  the  second  inaictment,  even  if, 
on  the  motion  of  the  lord  advocate,  the  first 
should  now  be  deserted.  I  shall  state,  in 
very  fow  words,  the  grounds  upon  which  I 
think  our  olijection  is  irresistible. 

It  is  known  to  your  lordships,  that  by  the 
criminal  law  of  this  country,  as  now  firmly 
established,  every  person  who  is  brought  to 
the  bar  upon  a  criminal  charge  is  entitled  to 
have  the  mdueia  of  fifteen  fi«e  days.  What 
benefit  could  be  derived  from  the  indnda  if 
he  could  be  brought  to  trial,  and  during  the 
dependency  of  that  trial  induda  might  be 
running  against  him  all  the  while  for  another 
trial  on  account  of  the  same  crime?  Why,  be 
would  be  placed  in  a  situation  in  which  the 
law  certainly  never  meant  him  to  be  placed  ; 
he  would  be  perplexed  and  embarrassed,  by 
being  under  the  necessity  of  defending  twp 
actions  >  subsisting  together  at  one  and  the 
same  time.  Observe  how  far  this  principle, 
if  once  admitted  would  go.  The  prisoner  is  in« 
dieted,  he  is  brought  to  Uie  bar,  an  objection 
is  stated  to  the  nlevancy  of  the  indictment, 
and  your  lordships,  after  an  argument  of  twdve 
hottis  upon  the  relevancy,  find  the  indictment 
irrelevant.  The  next  moment  his  Majesty's 
Advocate  takes  a  new  indictment  out  of  his 
pocket,  and  the  prisoner  is  immediately  put 
again  upon  his  trial  for  the  very  same  offence. 
Well,  the  second  davyou  have  an  argument 
upon  the  rdevancy  of  this  second  indictment, 
an  argument  which  also  lasts  twelve  hours; 
and  when  that  indictment  is  found  irrelevant, 
what  happens  next?  A  third  indictment  is 
produoed  by  his  M^esty's  Advocate,  and  he 
insists  that  the  prisoner  shall  again  be  tried. 
And  thus  there  might  be  fifteen  different 
indictments,  under  which  the  prisoner  is  ac- 
tually kept  upon  his  trial  for  fifteen  days, 
being  the  whole  mdueia  contained  in  the  -first 
indictment;  and  upon  the  sixteenth  charge, 
the  panel  might  be  brought  to  trial  upon  a 
relevant  indictment,  and  without  having  had 
one  moment^i  time  to  prepare  his  defence. 

I  may  be  told  that  this  is  stating  an  extreme  ^ 
case,  one  whidi  is  not  likely  to  happen.  Such ' 
a  case  certainly  may  not  happen  while  my 


imi 


Jar^dminktm^mtlai^fii^Ottihs. 


A.  D.  1817. 


ino 


fiind  is  loi4  ad»acM«>  bat  if  whit  I  buiit 
•Urted  might  happen  jn  »d  eztreine  cue,  ft  j» 
«ooagk  Ck  my  tmmeoL  £vecy  possiUe 
dttoger  «P  tNs  k«ia  ought  ta  be  guarded 
agaiiM^  Ibr  experience  teaches  us  that  cri- 
naipal  pwocatioM  are  often  reaoctc^  to  from 
ii]Bbiilie%  lereage^  and  other  impioper  mo- 


i^f  genenl  rale,  therefore,  in  the  law  of 
Scettonn,  I  aflirm  that  if  a  penon  is  indicted 
te«  crime,  aad  if  be  comes  lo  the  bar,  and 
pleads  pi>  that  indictment,  then  there  is.  a  de- 
pending pmess  apinst  him,  dttrmgfohick  he 
caanbt  again  be  cited  tO'answer  for  the  same 
dwcge,  and  in  that  way  be  deprived  entirely 
of  «k«  benefit  of  his  imdmitr*  llie  mosBent  he 
bas  pleaded  to  hia  indictment,  it.  is  incompe- 
tent to  hara  another  indictment  running 
ugainst  him  for  the  same  ofihnee. 

There  are  various  ways  iu  which  I  might 
illnstcate  the  haidship  and  oppression  which 
mntUL  result  fyua  a  diffurent  role.  Suppose 
«  pansl  haS'pleaded  to  aa  indictmeai^  and  has 
been  actnsjfy  pot  upon  his  trial  here,  if  the 
ohyeetion  w]i<&  I.  am  now  stating  is  not  a 
g«M>d  objection,  hie  Maiest/s  Advocate  might 
taiae  anolhec  indictment,  requiring  him  to  take 
fcia  trial  at  a  distance/^  for  instance*  at  Aber* 
deen,  the  day  after  the  diet  of  the  first  rsodict- 
nent,  whidi  is  to  be  tried  at  Edinboigh,  and 
that  iar  the  very  purpose  of  d^erting  the  first 
indictq^ent  and  proceeding  upon  the  second. 
In  tins  very  case  it  is  posaible  that  the  pend 
wmj  have  fifty  witnesses  to  examine,  and  of 
coarse  he  is  bound  to  have  them  here  to-day 
in  casa  thetiial  should  go  on  on  the  former 
iadietmem.  But  if  the  Ibrmer  is  deserted, 
and  a  aew  one  called  at  Aberdeen  to-mortoWy 
ia  what  asanner,  I  would  ask,  ,is  the  psn^  to 
twiwport  his  witnesses  toiAherdeen?  Thetnda- 
csa  are  given  by  law  for  the  very  purpose  of 
pwilsctiiig  the  accnsed  against  surprises  of  this 
Bad;  but  the  practicealteaspted  on  -the  part 
of  the  Orovin  would  defeat  that  purpose. 

It  is  in  vain  ta  say  that  the  Court  would  ia- 
terfssa  to  give  ledressy  if  an  oppressive  pro- 
cseding  otibt  aatnie  I  have  supposed  were  to 
be  attempted.  That  plea  was  once  umd, 
when  a  prosoctttor,  in  oefiance  of  alt  law,  had 
asS  given  the  OB^bosKry  ts^b^,  and  X  am  sony 
so  say,  that  it  was  bstened  to  by  the  Court. 
The  libel  oonta^ied  Mmm  of  twdve  days 
oofy;  and  .wbeft  <the  panel  oomplained,  be 
w«  told,  thai  i£  he  had  applied  to  the  Court 
iw  hmgnr  time,  it  would  have  been  allowed. 
The  olgeetioB  was  aocoidinf^y  repelled^  hut, 
as  Mr.  Home  jastly  observes,  it  was  most 
amfioperly  vq^elled^  l£  the  ordinary  rules  of 
J»r,. settled  by  the  McUce  of  centuries,  are 
40  he  di^MOsed  wtin»  and  a  prisoner  loUed 
0v«rsifMmlha.Couit>lQrsadiess«  isk^enough 
Snsay».tbii<be  .will  obtain  as  a  fasoufv  wlMt 
bs is  jeslsied  ito  dbsiasd  as  a  tight?  If  thi»: 
be  Sl»><s0e,  all  ssttarily,  M  liberty  is  at  an 


Thus  irasiMssjaod  very  gwathardshipt  would 
aHult,  if  9#B'  ones  edmit|  Ihat  after.a  pssaon 
VOL.  XXXIII, 


}^,p|Mded  to  one  «rinunal.pn)siicaJ;iQO,  aad 
iwldle  it  is  in  dependence  —for  example,  while 
iqformf^ns  are  prepariiig  on  tha  relevancy 
^Hthe  tffduM  of  anodier  prosecution  for  th^ 
samjB  crime  may  he  current. 

I  do  not  say  that  the  question  .which  I  am 
now  stating  to  your  lorj^ships  has  been  da- 
cided  ia  tenmm  by  the  jQcturt.  If  it  has  S9 
been  decided,  it  has  escaped  my  observatioo, 
and  the  learned  counsel  upon  the  other  side 
,of  the  bar  wiU  mention  the  cases  in  ;which  the 
objection  has  occurred,  and  has  been  repelled, 
•for  any  thing. that  I  know,  there  may  be  in- 
.stanoes  of  trials  having  proceeded  on  indict- 
.ments  raised  in  the  same  manner  as  the  pre- 
sent; but  that  must  have  hapnened  where  the 
x>bjeotion  was  not  stated ;  ana  you  will  .easily 
see,  that  in  many  cases  it  might  be  for  the 
interest  of  the  panel  to  wave  .the  objection^ 
Jn  many  cases  a  {prisoner  would  wi^h  to  be 
tried,  without  any  imdmrni  foripstanoe,  in  a 
ohaige  of  a  subordinate  or  inferior  nature^ 
there  may  often  b^  an  interest  on  the  part  of 
the  prisoner  to  jwave  thi^  olgection.  But  what 
I  found  upon  is  this,  that,  as  far  as  I  have  been 
able  todiaco^»r>  this  objection  has  not  been 
stated  and.reptiAed  m  krmim. 

But  though  I  cannot  refer  to  a  precedent  in 
which  it  faaa  been  sustained,  I  think  there  has 
been  a  case  deoided  which  appears  to  me  ta 
proceed  on  the  very  same  prmciple,  .and  to 
dhistrate  aad  support  the  argument  which  I 
have  now  the  honour  to  maintain.  ,There  are 
instances  of  hadf  a  do^en  indictments  having 
been  served  upon  a  prisoner^  one  after  aaothes^ 
,and  calling  him  to  attend  at  the  bar  at  diS> 
•ferent  times ;  and,  in  particular,  that'  happen«> 
ed  in  the  celebrated  case  of  colonel  Francis 
Charteris.  Four  difierent  libels  were  executed 
,  against  him  to  take  his  trial  for  the  same 
teiine,  all  cdling  him  to  appear  ia  Court  at 
diflfasei^t  (times;  .and  wben  be  appeared  upon 
the  first  of  tbes^  indictments,  be  stated  that 
■he  ivas  not  bound  to  plead  at  all,  until  the 
Jord  advocate  selected  the  indictment  upon 
whioh  he  intended  ta  cany  ea  the  trial;  and 
Ihe  Court  found,  or  it  was  admitted  oa  the  past 
of  the  prosecution,  that  this  was  necessary^; 
and  accordingly,  bsfoSe  the  trial  proceeded, 
it  was  necessacy  to  desert  three  of  ihe  indicW 
ments— and  when  they  weteap  descEted,  then, 
and  not  till  then,  was  oolosiel  Charteris  ra« 
quired  to  plead. 

Is  not  that  case  precisely  the  same  m  irta- 
(BnU  as  the  present?  For,  if  before  colonel 
Charteris  pleaded,  every  indictment  then  in 
dependence  but  one  was  necessarily  deserted, 
— ^now  that  my  client  has  pleaded,  there  being 
but  one  indictment  when  he  pleaded,  it  fid- 
lows  fi>r  ihe  same  reason,  that  other  three  in- 
dictments cannot  be  hung  over*  his  head.  H 
you  do  not  support  this  objection,  you  place 
n^  client  in  that  situation  in  which  it  was 
decided  that  edonel  Charteris  could  not  be 
.placed.  If  cokmd  Charteris  had  plead^  to 
Us  first  indictment,  while  the  others  were  in 
snsnensei  hawooid  have  been  in  the  situatuui 


«lll        m  GiSOttGE  III. 

in  wliich  it  is  wished  to  p1ac«  n^rdient  «t 
wesent.    The  principle  of  the  rule  in'cokmel 
Charteris's  case  is  so  wdl  laid  down  by  the 
learned  author  of  the  Commentariesy  that  I 
cannot  refrain  from  stating  it  in  his  words.   In 
Hie  4th  iroU  of  Mr.  Hume's  works,  or'  the  2nd 
▼ol.  upon  the  Law  of  SobHand,  as  to  the  ttkA 
ef  Cnmes,  page  34,  after  haTing*  first  stated 
tiiat  the  Court  erroneously  and  improperty,  in 
two  preceding  cases,  had  repelled  that  objec- 
tion, he  proceeds  to  stale  die  case  of  Ghsrteris, 
^  On  the  one*  hand,  the  prosecutor  cannot  say, 
that  he  is  hardly  dealt  wiUi  in  being  put  to 
make  his   choice   among  his  scTeral  libels, 
whereof  some*  one  at  least  ongfat  td  be  correct, 
and  executed  in  proper  form.    On  tile  either 
hand,  tiie  panel  snifiBrs  a  disadTantage  in  con- 
ducting  bts  defence,  unless  snch  an  ellsotion 
shall  be  made.    For  there  may  be  blunders  in 
the  body  of  one  of  those  Ubeis,  or  in  the  Kst 
of  witnesses,  or  in  the  manner  of  exeoudon 
against  the  panel  or  witnesses,  which  may  be 
more  or  less  a^ailaUe  to  him,^aiid  may,  perhaps, 
aerye  to  his  acquittal,  if  the  prosecutor  insist 
ezclusiTclyon  mat  one.    Whereas,  aocoiding 
to  the  latitude  allowed  in  Lindsay's  oas^  even 
after  making  good  such  objections,  the  panel 
in  nowise  profits  bv  his  success  therein,  and  is 
dius  perplexed  and  encumbered  with  die  care 
«f  a  double  set  of  pleas.    I   learn  from  a 
printed  petition  and  answers  (lor  ther  are  not 
m  the  record),  that' in  the  case  of  colonel 
Charteris,  the  panel  had  been  serred  with  no 
fewer  than  four  libels,  calling  him  to  several 
4iets,  and  o^erwise  differing  one  from  ano- 
ther; and  of  this  proceeding  he  compliiitts, 
•ad  insists  that  the  proseentor  shall  specify  the 
dittay  on  whidi  he  intends  to  go  to  trial.    The 
prosecutor  does  so  accordingly,  in  his  answers 
to  the  petition ;  and  it  appear»  from  the  infor- 
mations in  the  ease,  that  the  colonel  nerer  had 
to  plead  to  any  of  those  libels  but  one,  which 
alone  appears  in  the  record.^ 

You  therefore  see,  that  before  coloneV  Ghar- 
teiis  would  open  his  mouth  upon  that  indict- 
ment, he  was  entitled  to  have  every  cither  ia^ 
dictment  for  ^  same  crime  pat  out  of  the 


Trial^WiOiamtd^ 


(fflS 


tiie  lord  advocate  has  followed  a  diiennt 
eourse  here,  for  he  first  caiied  one  indidment, 
to  which  the  panel  pleaded ;  and  after  your 
lordshifM  had  ordered  informations,.  therebY 
continuing  the  dependence  of  the  trial,  whidi 
at  Ibis  very  moment  has  not  been  deserted^— I 
say  pending  Ifcat  process  to  whidi  the  prboner 
pleaded,  he  has  been  dtedliy  another  indict- 
ment, which  is  also  now  otet  ms  Wad;  and  he, 
nnd  his  counsel  if  they  have  dene  th^ir  duty, 
have  been  encumbered  and  peiplesed  fiftiseh 
days  in  attending  to  different  set»of  pleas^  in 
these  prosecutions.  If  the  objection  in  the 
ease  or  colonel  Charteris  was  sustained,  yeo 
•uffht  to  sustain  the  olijection  in  thisuaie  a|po. 

It  majr  perhaps  be  maintained,  but  there  is 
no  prindple  to  bear  out  the  statement,  that  the 
second  indictment,  ▼irtuaUy'iihports  an  aban- 
donment jof  the  fimtindictimeiit.  Anindictment 


mi^  be  abandoned  before  the  panetis-Mought 
into  court  and  pleads:    The  lord  advocate  mi^ 
bring  twenty  indictments ;  but  before  bringing 
tiie  panel  to  plead,  he  most  desert  all-  of  then 
but  one.    And  I  ask.  Can  won  case  be  pointed 
out  to  me,  of  three  or  four  itfdictasents  brought 
against  an  individual,  and  of  hi»  being  brought 
to  trial,  not  upon  the  last,  but  on  the  fiitt  ef 
these  iuiftctments^    The  prindpto  ia^  tfaa^ 
where  several  have  been  served  upon  a  paae^ 
the  seeobd  is  understood  to  be  a  virtaal  desbr& 
tion  of  the  first,  the  third  of  the  second,  and  s« 
forth.    The  prisoner  is  always  entitled  to  plead 
to  one  only,  and  that  is  always  the  last.    But 
tiie  prindple  by  which  »  subsequent  indictment 
is  held  to  imply  an  abandonment  of  a  foriMr 
indictment,  cannot  apply  in  the  <saie  befoi<a 
us ;  for  the  moment  that  issoeis  jeined  betwees 
the  prosecutor  and  the  pttad,  it  is  no  longer  in 
t&e  power  of  the  public  pieseMtor  to  abandon 
the  indictment,  unlesshe  db  if  for  ever.    Wheii 
the  prisoner  has  pleaded  to*  an  iifdictment,  ke 
is  then  m  mmitm  m^  and  ^  prasecnlov 
must  have  the  express  sanction  of  the  Court 
for  the  deserting  of  the  libd.    This  ift  laid  dnwa 
in  so'many  words  by  the  learned  Commenlntor 
at  the  38th  page  of  the  volume  already  men- 
tiened :  ''^It  is  also  a  case  which  sometiinea- 
happens,  that,,  thbogh  still-resolved  on  bringi^ 
the  pand  to  justice,,  the  presecutor  sees  canee^ 
however,  not  to  insist  in  thetrid  of  him  on 
that  particular  libel    Because,  periiaps,  be  has 
discovered  some  flaw  in  it,  or  the  exeentioii» 
thereof;  or  on  account  of  new  and  material 
evidenoe  whidi  has  latdy  come  to  4iii  know- 
ledge; and  whidi  requires  an  addition-to  his 
list  of  witaesses,  or  may  occasion  ai  difeunca 
in  the  laying  of  his  charge.    In  dtuaiioaaof 
this  sort,  whtdi,  notwithstanding  all  due  ^wm 
on   the  prosectttor^s  part,'  must  sometimes 
happen>'  it  is  necessary  to»tbe  advancement  of 
justice,tfaat  he  have  the  power  of  desertine  hia 
present  libel,  without  prsjodiee  to  bis  lignt  cC 
insisting  anew,  at  the  time,  and  in  the  foim^ 
which  he  shall  find'  advisable'.    U  indeed  be 
had  the  absolute  and  uncontrolled  privilegn  ef 
throwing  up  h]s>  process  as  often,  and  ft>r  what 
causes  soever  he  ideased  ;  this  would  be  dan- 
gerous to  the  panel,  who  might  thus,  under  fldae 
or  alfoeted  pretences,  be  hanased  #ith  repeatsd 
libds.    Our  custom  does  not  therdbre  trust 
the  piniecutor  to*diat  extent^  but  ifflows  hiak 
only  to  move  ih»  court,,  to  desert  the  d»t  pre 
Isss  €i  Umfore;  in  which  request  thiif  ifiny 
refiisfr  to  gratify  him,  if  diejf  see  cause  to  hi- 
lievethat  he*  intends  any  thing'  oppreisivu  or 
improper,  or  if  thcrjr  are  not  satisfied  that  there 
aro  good  reasons  fiMrsuch  an  indidgence.    It  is 
true,  the-  stjple  has  crept  into  piMtioB,  of  M 
pviseafor  merUng  the  diet;  because  it'  ee 
often   happens  that  his  motion  finr  such  a 
purpose  IS  sueoessftil.    But  in  tnlth  this  is  a 
tebse  and  inaccurate  exprenion.    For  die  aiet 
of  desertion  is^not  his  act,  but  timt  of  the  Court; 
without  whose  permission  and  ddivesanoe'tlie 
process  cannot  be  withdrawn  in'this  tempomry 
wm.    And^  indiMd>'il  he  be  ft  private  fafmh 


9131 


Jfer  jiimMitJimg  unlan^ld  Oaiis* 


A.D.  18)1 


[S14 


^tttoTirteiCftwl  Iwfe  4rii«Bd7«i«tiQo  ten  him  ^ 
to  itMiAt  •■  Uiat  Ubd;  and  to  this  thej  maj 
hold  him,  and  refuM  to  gire  him  new  letten, 
if  ihey  tee  cbom.    Aooordingljry  in  the  debate 

on  the  caee  of  Aftehihakl  (Maich  1, 1768X  the 
pioaecnlin  Ixai^fydiapwna  all  pretenmns  to 
9f^f  such  fibitrary.  power.  Hie  mi|jes^f  so- 
lictor vqireacntSy  that  he  obsenreB  in  the  infor- 
laatinnj  on  the  part  of  the  pand,  Tery  alanning 
oonaecpMnoes  are  endeavoured  to  be  grafted  on 
1^  doetaae  |)led  in  behalf  of  the  protecttior  in 
4ue  amt  a»  if  it  gare  to  the  pnblie  proseealoff 
a.fefy  aMtraiy  pofper^  f^preiiing  4he  enb* 
jeets  in  this  oovmtiyy  by  deaerting  4lieli  ai  often 
aahiateicyaiggested^  bntns  aU  the  alarming 
cpoaeyiencet  pointed  out  are  founded  iq>on 
the  aiqppoaition  of  a  doctrine  which  ike  never 
ilMnnft  to  plead,  he  thinks  it  now  proper  to 
liavo  this  matter  cka^y  undemtood;  as  the 
mtblie  pfosecntor  nerer  pleaded,  nor  does  he 
desire  it  to  be  beUoTed  by  the  suljeets  in  this 
oooBtiy,  thai  he  has  anv  arbitrary  power  of 
deseitanf  diets  wilbout  the  anthonty,  and  in* 
tervestioa  of  Court:  which  daeumstanoe  to- 
tal^ removes  all  those  apprehensions  which  the 
couBsd  for  the  panel  has  grafted  upon  the  sup- 
poaitioo,  that  an  arbitrary  |>ower  of  deserting 
3%Bla  wan  claimed  in  this,  or  in  anj  other  cause. 
by  the  public  prosecator.*'  And  it  is  stated 
in  still  stronger  terms  in  his  notes  asto de- 


rcthis  were  an  open  petntt  I.«annot  hesitate 
for  a  toement  to  betiefe^  lh«t  your  lordships 
wonld  decide  it  in  the  manner  which  I  now 
suggest;  'for  the  hardships  which  would  arise 
foam  imar  other  decision  are  plain  and  great. 
Bnt  I  anbmit  that  it  is  not  open;  for  diough  it 
waan^decided  ta  ienmnii  in  the  case  of  colonel 
<^nrleris,  the  objection,  theroi  maintained  is 
fmctlT  die  same  in  principle*  Upon  these 
ffoanof  I  bnmbly  submit  to  your  lordships^ 
lliat  the  objection  which  I  haie  stated  is  well 


I  think  I  have  already  observed,  that  the 
mistake  cannot  be  rectified  by  the  public  pro- 
seentor  deserting  the  former  prosecution  at 
this  stagiB  of  the  businem.  The  reason  is,  that 
the  panel  has  already  jiufiered  all  the  perplexity 
and  embaifamment  which  two  co«exj8ting  pro- 
secutions for  the  same  crime  must  necessarily 
eecaaion ;  and  he  has  in  consequence  been  de- 
prived of  the  benefit  of  his  mduda.  Both  in- 
dietmeats  h^ve  been  suspended  over  his  head ; 
and  lihe  desertion  of  the  first  now  at  the  veiy 
hoor  of  trial,  will  never  authorize  you  to  pro- 
ceed vridi  ihe  second.  To  what  hardship  was 
colmri  Charteris  exposed  in  going  to  trial  upon 
indictment,  white  others  were  hanging  over 
head,  to  whid>  the  prisoner  is  not  exoosed 
in  the  piesent  case  ?  Uolon^l  Charteris  anew 
well,  tnat  if  he  was  once  sent  to  a  jury  in  one 
indictment,  thu  rest  were  for  ever  at  an  end. 
Bat  the,Court'|hought,'that  he  was  not  bound 
ssi^i  tc-mkad  with  four  indiotments  hanging  over 
him;  that  Jie  was  apt  bound  to  take  his  chai^ce  of 
tlm  Ktetu^y  b«ii^i|iyti«d  tP^Qoe  of  these,  pro- 


aeentionsy  and  the  verdict  retuned  in  another. 
You  wonld  not  force  him  into  the  preUminatr 
step  of  pleading  and  arguing  the  relevancy  until 
evwy  indictment  but  one  was  withdmwn.  Now, 
I  beg  leave  to  ask  the  onestion  where  is  the  dif- 
forence  between  pleading  to  one  indictment, 
and  having  other  three  afterwards  served,  or 
having  all  the  four  served,  and  being  compelled 
to  plead  to  one  ?  In  the  first  case,  j[ust  as  mudi 
as  m  the  second,  the  four  prosecntions  are  co- 
existent, and  that  is  the  hardship  a>mplained 
of*  The  prosecutor  has  placed  my  client 
in  the  emysame  predicament  in  which  yon 
found  eokmel  Charteris  could  not  be  plaosd. 

I  maintain,  therefore,  that  the  second  in- 
dictnient  vras  served  enoneoudy,  beoanse  it 
was  served  while  the  prisoner  was  under  trial 
for  the  crime  charged  in  that  indictment.  For 
it  cannot  be  disputed,  ttmt  the  prisoner  u  under 
trial  from  the  moment  that  he  pleads,  althougji, 
according  to  our  forms,  the  jiuy  have  not  then 
entemd  ujpon  their  functions. 

Now,  if  a  prisoner  can  be  brought  again  and 
again  to  trial  for  the  same  crime, — and  he  may 
be  brought  twenty  times  to  trial  for  the  same 
crime,  while  the  act  1701  is  suspended,  as  it  is 
at  present,— it  is  but  fiur  that  he  should  have 
fifteen  free  days  between  each  of  these  trials ; 
namely,  the  ordinary  indMcim  of  the  law. 

If  you  once  admit  the  princijde  on  which  the 
lord  advocate  proceeds,  you  might  have  these 
twenty  trials  goin^  on  for  twenty  consecutive 
days,  without  respite  either  to  the  prisoner  or 
to  vourselvea.  I  beg  to  ask.  If  this  would  not 
only  be  to  harass  and  perplex  him,  but  to  deprive 
him  altoaether  of  the  oenefit  of  his  inducia? 
Could  fifteen  days  so  spent  be  called  fifteen 
days  allowed  for  preparation  F  The  prisoner 
would  be  perfectly  confounded,  not  knowing 
upon  what  day,  or  under  what  indictmeiit,  ha 
was  to  be  sent  to  the  jury. 

I  humbly  submit,  therefore,  that  the  poipt  is 
clear  and  established  in  principle,  that  the  ta- 
ducU  of  no  one  indictment  can  run,  even  after 
the  prisoner  has  jdeaded  to  another  indictment 
for  the  same  crime,  consequently,  although 
your  lordships  were  to  allow  the  lord  advocate 
to  desert  the  first  indictment,  that  the  prisoner, 
not  havins  had  his  tadacios  under  the  second^  is 
not  bound  to  plead  to  it. 

Mc  HiMne  Drummandi^l  do  not  think  that 
it  is  necessary  for  me  to  say  much  in  answer  1^ 
this  objection,  as  the  point  has  been  settled  in 
practice  long  ago.  ,  The  whole  question  in  dis- 
cussion here  seems  to  be,  whether  it  is  neces- 
mry  now  for  the  prosecutor  to  pass  expressly 
from  the  other  indictment,  or  whether  it  is 
already  virtually  JMssed  from?  The  learned 
gentleman  was  quite  incorrect  in  speaking  of 
ue  prosecutor  'deserting  the  indictment,** 
instead  of  '<  passing"  from  it ;  as  it  is  not  the 
mdietmait  which  is  said  to  be  deserted,  but  the 
dki  and  besides,,  the  desertion  is  not  the  act 
of  the  prosecutor,  but  of  the  Court.  If  the 
diet  were  to  be  deserted,  there  mi^t  be  a 
doubt  whether  both  indictments  would  not 


th^r^jrb^  ^tfnguished,  as  the  diet  «f  bolfl 
happens  to  fall  on  the  same  day.  Fuifber  thta 
fhis,  the  prosecutor  can  have  no  interest  hi  ob- 
jecting to  any  mode  of  eztingnishrng  the  irst 
lA>el.  He  could  hare  no  other  mothre  in  nbt 
having  recourse  t6  the  Ibrm  of  moring  the 
Court  to  desert  the  diet;  and  he  conceived 
that  he  was  following  a  simpler  course, 
and  one  less  calculated  to  create  trouble  and' 
Aehy. 

I  happen  to  have  loioied  into  the  practice  ef 
late  years  as  to  the  point  in  question,  and  I 
naintainy  that  the  proceeding  in  tMs  case  afe 
agreeable  to  the  practice  which  your  lotdsUps 
have  sanctioned  and  shall  mention  iht  cases 
that  have  occurred.  lindsay  Crawford  was  in* 
dieted  to  stand  trial  on  the  9m  of  Januaiy  ldl3. 
The  diet  was  continued,  on  the  motion  of  his 
own  counsel,  to  the  3rd  of  February;  before 
which  3rd  of  February  new  criminal  letters 
#ere  raised  against  the  panel ;  and  the  trial 
proceeded  on  the  criminal  letters,  without  any 
notice  being  taken  of  the  first  indictment, 
though  the  trial  on  the  criminal  letters  took 
place  on  the  same  day^  the  8rd  of  February. 

Mr.  Mum^, — ^Had  he  pleaded  ? 

Mr.  Drumntond. — He  had  not.  He  had  come 
into  court,  and  the  diet  was  continued  upon 
the  motion  of  his  own  counsel.  It  is  of  no 
consequence  to  the  principle  of  tlie  objection 
whether  the  panel  pleaded  to  the  indictment  or 
not ;  but,  at  all  Events,  there  are  cases  enough 
where  this  proceeding  has  taken  place  after 
panels  have  pleaded. 

The  veiy  next  case,  that  of  lliomas  Somet^' 
▼ille,  was  one  of  that  description.  He  was  in- 
dicted to  stand  trial  on  the  25th  of  January 
1813.  On  that  day  a  long  pleadiag  took  place 
iipon  the  relevancy;  conseqqetitly  he  did  plead 
to  the  indictment.  There  cojiifd  iiot  have  been 
d  debate,  If  he  had  not  pleaded  not  guilty. 
Informations 'on  the  relevancy  were  ordered  to 
be  given  in  on  the  15th  of  February;  and  be- 
fore that  time,  new  criminal  letters  were  raised 
which  fell  upon  the  same  day,  the  15th  of 
February.  I  took  a  note  at  the  time  of  a  con- 
versation on  the  bench  as  to  the  particular  ob- 
jection which  has  now  been  stated,  and  which 
I  beg  leave  to  read,  i  see  two  gentlemen  on 
the  other  side  of  the  bar,  who  can  correct  jne 
if  I  am  inaccurate,  who  I  remember  to  have 
f  een  counsel  in  that  cause.  *^  Lord  Hermand 
asked,  if  it  was  not  proper  in  such  a  case  to 
desert  former  diet  pro  loco  et  tempore  ?— Ob- 
jected, That  former  indictment  abandoned  by 
service  of  this.  And  Court  said  they  would 
adhere  to  the  practice,  and  cate  proceeded"  I 
had  added  this  remark  to  the  note ;  ''Had  not 
the  diet  fallen  upon  the  same  day,  it  would 
have  dropped  out  of  the  record,  by  the  passing 
of.  the  day  without  its  being  called.'^  Now, 
can  the  prosecutor  be  compelled  to  .appear  or 
insist  in  any  hbel  he  does  not  choose  to  insist 
in  f  and  if  not,  must  not  the  diet  fall  and  be 
dropt  for  want  of  aa  instance  ? 
'  VpCB  d)«  13th  of  Jane  1814;  Johntfom 


TrM  of  fymm  Edgar 


C216 


wtti  brought  fothebaronachHrga^ffohnQiy. 
Pleadings  at  great  length  took  place  cia  the 
relevancy  of  the  iadictisent,  the  pand  bavivje 
pleaded  not  guilty.  Infonoatioiia  were  CfdereS 
to  be  given  in  on  the  8di  of  Jaly,  and  aiaiaar 
proceedings  took  place.  Before  that  day  m 
new  indictment  had  been  served,  Ae  diet 
whereof  fell  upon  an  earlier  day,  aild  wpom 
that  day  informationB  wer^  ofdered  of  iieia 
upon  the  new  iadictment. 

Jhett  was  also  the  leeent  eaaeof  lbs  TiMstle 
Bank  of  Glasgow  against  Befli  and  DMgla*^ 
After  the  panel  Dcwglas  had  pleaded  g^fty, 
informations  were  oideied^  aan  a  new  indiot- 
ment  was,  in  the  mean  time,  served  upon  ^m 
panel,  which  was  understood,  as  is  the  Ibi 
cases,  to  have  eattfaiguiahedthe  first. 

These  are  all  the  cases  since  1811,  iik 
it  was  possible  for  this  olje^etion  t*  eicoiir;- 
and  the  same  practice  took  place  h^  a&  of 
them  that  has  been  followed  here,  whicb  eoaki 
not  have  happened  if  this  objectioB  had  been' 
wMl  founded.  The  plea  of  its  having  pasMd 
luff  tUetUio  cannot  be  maintained,  as  it  is  Iha^* 
daiy  of  die  Court  to  see  that  eve^  thing  shidl* 

So  on  according  to  the  proper  forms  of  hnr,  a- 
uty  which  the  Court  at  all  times  disdiarge^ 
whetlier  the  panel's  couiisel  think  it  totMr 
fnterest  to  state  objectiona  or  not.  A  stroa|;ar 
example  of  this  cannot  be'  ^en  4ian  &tt 
very  case  of  Douglaa,  Where  tibe  Ceait  etrdered 
informations  on  the  relevancy  of  an  faidict-^ 
ment  to  which  the  panel  had  pEl^aded  ndlty. 

The  embarrassment  of  the  panel  witn  dilpei^ 
ent  libels,  and  the  other  evils  coMphoned  e^' 
are  entirely  imaginary.  The  service  of  ^  ttdr 
indictment,  or  at  least  the  eidlitig  of  the  diet,- 
extinguishes  the  old  one ;  ahd  th^  is  my^Ub^ 
sistincr  indictment  but  ^  last  obe'  widdi  i^ 
served  on  the  panel.  If  any  diet  were  to  bef 
deserted  at  all,  it  would  be  the  diet  of  tto 
last,  as  no  notice  could  be  taken  of  thefint* 
If,  however,  your  lordships  dioold  have  am 
dpubt  upon  the  subject,  the  prosecutor  wm 
pass  from  the  indictment,  or  will-  move  for  a 
desertion,  or  follow  any  coune  that  tho  Cowt 
ffiay  think  best  calculated  to  put  an  end  to  Ae 
first  indictment,  if  its  existence  shotild  still  bo 
thought  possible.  He  has  no  wish  to  maintais 
any  argument  on  the  subject ;  only  it  is  Ma  opi<* 
nion,  that  by  the  service  of  a  second  indiet* 
ment  he  has  abandoned  and  virtually  pa»ed 
ft-om  and  extinguished  the  first. 

Lord  Advocate. — ^After  the  statement  wfadcli 
has  been  giveii  by  Mr.  Dmmmond,  I  do  not 
mean  to  detain  you  by  entering  into  a  qoe^ 
tion,  which  I  understand  to  be  shut  hytiie 
uniform  practice  of  your  lordships.  Bat  I 
think  it  necessary  to  advert  to  one  point  hi 
ttf r.  Cranstoun's  speech.  He  stated,  that^  finr 
some  time  past,  the  cotin^  i(k  Ihe  panel  bad 
ihought  it  incumbent  on  them  to  attend,  not 
only  to  this  indictment,  but  also  to  Ihe  last,  in 
which  informations  n^re  ordered  on  the  rke- 
vancy.  He  ought  to  have  stated-^-and  aa  I 
know  his  ftdmess,  I  think  it  mast  have  boett 
byaimssioil  ttiat  he  did  iiautate«**aurt  alN 


* 


ivn 


Jbr  Mmiiith0Uig  udm^  OaOu. 


A,  n,  1«(% 


\m» 


ita»  &  nondl  befiie  tlv  paid  iNte  Mrred  ^mdi 
i^iA  indietamty  notioe  was  givoi  to  his  ooantel 
\ff  liiwtf,  tiitt  it  was  BOt  intended  MrpiDMeate 
lk«  fittC  iddietfliaat,  but  to  sarfe  mib  with 
aaMhetf.  I  tfaink  it  fleoettary,  i«  vindieatioi^ 
«f  tlM  pablio  ptoaecntor^  to  aiatn  this  to  your 
lonlsiups>  u  it  ahawa  there  was  no  hitei^aD 
in  oppms  th9  panel,  av  to  give  hiacouiael 
«nf  naediaw  tronhla^ 

Ob  the  point  iisal^  I  sfHe  la  yon,  lini  net 
onlf  since  181S  hit  this  point  bean  nndemot>d 
toh^ahtit,  but  in  «U  the  caaea  before,  this  was 
Aanniftmnpnotiae.  lathecaaaof  Mendhaniy 
there  waa  » iMig  avfoaaent  whether  tiie^iaBaing 
af- notes  in  Eof^and  oould  be  ataled  in  this 
Govt,  on  the  gionnd  of  the  crfme  in  the  one 
ootmtiji  being  a  ootttbstiation  of  the  orime 
<BuiBiitted  in  the  dtiiCT.  After  the  panel 
niairifri  upon  that«  i«lbtttationa  taese  drdefed^ 
It  was  dien  thought  the  better  tiode  of  pao-* 
cneding  to  abandon  that  iadiettnent^  ana  to 
give  n  new  one,  whidi  was  detia  while  ialbf^ 
naadena  weita  in  depend^nee;  and  in  that 
cnaei  where  it  ia  hnown  to  jtxM  loxdidnp  that 
9iwtf  attempt  was  made  to  safe  the  individnal 
Aen  at  tho  bar,  this  point  was  tmdecstood  to 
be  shut. 

•  The  Mittt  jnst  comes  to  this,  that,  where 
Ae  pnbOe  proaecntor  has  ndsed  an  indicCment, 
it  is  competent  fo  him,  antecedent  to  pleading 
Mbre  a  Jnty,  to  abandon  the  indictment  and 
las^  a  second.  It  appears  to  me  that  the 
dicnmstanoe  of  a  pleading  on  the  relevancy 
httittg  tdcen  phboe,  cannot  prerent  the  public 
pt^asecoior  frmn  abandoning  the  indictment 
vriien  be  thinks  fit,  and  bringing  a  new  indict* 
inent.  liddng  both  the  principle  and  invalria- 
Me  pthdtice  into  Tiew,  there  cannot  be  a  donbt 
111  the  caaoi  In  sappcH  of  what  was  stated 
hj^  Mr*  DtttniflAond,  the  oise  of  colonel 
Chhtteris  is  in  p6iht.  If  It  bad  not  been  held 
Aaft  Ae  kM  ifldictmtot  waa  a  Viiaaa^pahaing 
fiom  the  Ibrmer  oaesy  all  of  them  wontd  ha^e 
appeaared  tm  th^  recMk  Bat  he^e  it  oAly  on# 
tipon  tlie  r^rdi  tlierfefbre  the  service  of  th# 
aecoiid  wai  a  virtnal  abandemnent  cf  the  first. 
Upon  thefee  gkmnds,  I  hat^e  no  doabt  of  the 
«eBipetency  cf  the  proceeding  in  this  aaae^ 

Mr.  Gferit— If  the  objection  stated  by  Mr. 
GraAat^uh  has  any  solidity  ih  it,  I  am  sure  no 
^aod  anawer  has  been  givett-to  it  on  the  other 
sid^  of  the  bar,  and  indeed  no  answer  at  all. 
Ihe  tewned  gentlemen  were  pleased  to  talk 
of  a  pfMtiee  since  lbl3,  of  which  they  have 
shown  yoor  lordships  no  te06rd ;  aind  one  of 
fSueub  talks  of  a  case  brought  into  Court  a 
nanber  nf  yeata  ago,  in  whidi^  he  sliyBi  a  fiMt 
iadictmettt  waa  abandoned,  and  a  tcoond 
aefved  oA  the  panel,  upon  wlikft  sec(yhd  In^ 
dicttncBt  the  trial  proceeded.  As  t6  Ae-ch^ 
camstatwpes  of  tfiai  case,  we  have  Ih^  aofbority 
of  m  learned  firiend,  which  li,  Kvo  d<MiM, 
feonaiderable;  but  it  is  not  an  authority  upoti 
which,  in  duty  to  my  client,  I  am  bound  to 
^kfi  And  to  What  dothesfeicaset  amount  after 
^ak  Jasl  to  ttit^  Ihtt  the  pabfH  tUkMred  hiai^ 


selfio  bh  Med  npoit  a 
out  makiag  any  obyectioik  to  it«  It  is  very 
eaay  to  aooaiiDi  for  all  dMoe  caaes.  H  vat^ 
freqiaentfy  happem^,  that  it  woald  not  avail 
a  panel  to  have  his  triat  pat  off— 4ia  ia  prapaaad 
to  meet  it,  and  his  oomtsd  beina  laadhr,  ha 
Would  not  wish  to  pot  off  the  tnal,  or  ineur 
any  farther  delay. 

We,  who  are  ooanael  in  this  ease,  consaHed 
topether  whether  it  waa  worth  while  to  ataia 
thia  ohjectton,  aa  it  trauld  menty  lead  to 
dah^.  Dating  eae  period  of  the  coaaaltalieiB 
I  waa  of  cpiBion,  that  it  waa  not  worth  whila 
to  sute  the  c«f^ection,  being  all  tha  whOa 
aatiafi^  it  waa  a  good  sAiieoitQn.  What  I  hara 
said  is  aaffidaat  to  aaeoaat  far  all  tfaa'casaa 
which  have  been  cited,  even  auppeaing  they 
wane  ataled  accatately.  In  geneial,  I  may 
observe  this,  that  it  eHea  happena  ia  eaaca 
tfemips^befoiatfars  Coatt^  that  tha  gtntiemen 
who  attend  for  the  panel  tea  better  aanmiated 
with  civil,  than  with  crimiaal  trials.  Sudi  an 
objection  as  wa  now.  maintain  would  very 
possibly  not  have  occurred  to  m«.  But  it 
stands  on  the  ground  of  authority  and  of 
principle,  and  it  tbast  ba  considered  well 
fbunded.  Upon  what  is  it  founded  f  JWaf, 
It  is  positively  laid  down  bvMr.  Hume,  who 
mentions  his  authorities,  ana  he  himself  is  & 
great  authority,  that  the  prosecutor,  pubUo  or 
private,  cannot  abandon  his  indictment  after 
the  relevancy  is  pleaded  to.  He  has  no  right 
to  give  it  up.  He  has  no  more  right  than  any 
other  litigant  has  to  give  up  any  case  without 
the  leave  of  the  Court  I  apprehend  yoa 
cannot  reasonably  have  any  doaot  as  to  uiia 
point,  that  no  ^iroaecutor  •  can  of  his  own  au- 
thority desert  the  diet,  or  abandon  the  libel,  or 
prevent  the  Court  from  discutting  that  libel. 
The  matter  must  be  judged  of  by  the  Court. 
This  is  expressly  laid  down  by  Mr.  Hume, 
and  I  am  surprised  my  learned  friend  should 
use  his  own  authority  against  Mr.  Hume's  au- 
thority, without  offering  any  argument  upoa 
the  sulriect.  '^  It  is  also  a  Case  which  some- 
times happens,''  says  Mr.  Hume,*^  ^that 
though  still  resolved  on  bringing  the  panel  to 
Justice,  the  prosecntor  sees  eaase^  however, 
not  \^  insist  on  the  trial  of  him  on  that  parti*'^^ 
cular  libels  Because,  peihaps,  he  has  diseo- 
vered  some  fiaw  in  it,  or  the  executions  thdrao^ 
or  on  account  of  new  and  mateiial'  evidence 
which  has  lately  eome  to  his  knowledge,  and 
which  requires  an  addition  t<^  his  list  of  wit- 
nesses, or  may  occasion  a  difference  in  the 
laying  of  his  charge.  In  situation«  of  thia 
soFt,  which,  notwitlMtanding  all  due  petns  en 
the  prosecutor's  pai^  must  sometiaafts>  happen. 
It  is  necessary  to- the  advancement  of  JuMiee 
that  he  have  thefiower  ^ofdesertinghia  present 
Ubel,  Withoat  f>i«|ttdlee  to  his  right  oC  insisting 
anew  at  the  time,  and  la  the  form  which  k« 
shall  find  advisaUa*  if,  indeed>  he  had  the 
absohrte  and  uncdnttfolled  privilege  of  throw- 
ing up  his  process  aa  often,  and  Ibr  what 


«M«*MMMfri|«i|**M»'^«l— i*^hM 


*     »«l>i^<i<*#<Mi 


%  S-Tr* :|»  Gr.l8» 


aifi]         57  0BO«3£  Ifl. 

iMUi9efl.«o«f tt  h%  'plwsedy  tiii»  wooid  be  d«ii- 
gerous  to  the  panel,  who  might  thus,  uider 
nlio  or  afieeted  prelenoesy  be  berawcd  with 
lepeeted  libels.  Our .  iciutom  does  not,  there- 
m%  trust  the  prosecaCor  to  that  extent,  but 
atfows  him  onlj  to  more  the  Court  to  desert 
the  4iet  jptm  hco.  et  tmfurt;  in  which  request 
they  may  refose  to  gratify  him,  if  they  see 
cause  to  beUeve  that  he  intends  any  thing 
•pfureiaiTe  or  inqiroper,  or  if  they  are  not 
satisfied  that  there  are  good  reasons  lor  such 
an  indulgence.  It  is  true  the  style  has  .crept 
iBle  practice,  of.  the  pmsecutor  deserting  the 
4iet,  because  it  so  often  happens  that  his  mo* 
lion  for  such  a  purpose  is  suocessf uL  But  in 
truth  this  is  a  loose  and  inaocucMe  expression: 
Ibr  the  act  of  desertiop  is  not  lus  act,  but  that 
^  the  Court,  without  whose  permission  and 
4eliferance  the  process  cannot  be  withdrawn 
in  this,  tempoiaiy  form.''  There  is  a  great 
4eal  moreto  the  same  eflfoct. 

Lord  GUSm, — Mr.  Drummond  says  this  is 
not  a  desertion  of  the  diet,  but  an  abandon- 
ment of  the  indictment. 

Mr.  €Mk.— It  is  clear  that  the  whole  of  tins 
passage  applies  to  the  case  now  before  the 
Court. .  I  shall  put  this  case  to  your  lordships. 
Suppose  that  a  libel  is  served  on  a  panel  with 
St  list  of  .witnesses  annexed,  that  the  panel 
ob|edts  to  the  relevancy,  that  the  Court  takes 
the  libel  into  constdeiatioo,  and  that,  in  the 
courM  of  the  aigument,  the  prosecutor  disco- 
Ten  he  could  strengthen  his  ceie  by  throwing 
lup'  that  libel.  Sumrase  that  he  therefore 
brings  a  new  libel  with  a  nfw  list  of  witnesses : 
May  not  the  panel  reasonably  object,  I  have 
disclosed  my  witnesses  in  pleading  to  the  foi^ 
mer  libel,  and  therdbre  it  is  improper  that  the 
prosecutor  should  have  power  to  throw  up  the 
former  and  bring  a  new  libel  accusing  me  for 
Cha same  crime? 

What  Mr.  Hume  says  is,  that  the  Court 
may  allow  the  prosecutor  to  throw  up,  or  de- 
sert his  libel,  but  that  he  cannot  dp  so  without 
leave  of  the  Court.  Were  the  prosecutor  to 
be  allowed  of  himself  to  desert  his  indictment 
^d  bring  a  new  one,  he  might  make  such  im 
attack  -on  the  prisoner,  as  the  prisoner  might 
.find  diiBcttlty  to  perry.  That  would  be  a 
.hardship  on  the  prisoner,  and  one  produced 
partly  by  the  discussion  on  the  first  indict- 
jnent.  And  if  the  first  indictment  were  to 
-bediscussed,  and  the  panel  to  be  tried  on  it, 
the  case  mif^t  be  such,  or  the  verjr  evidence 
such,  as  to  entitle  him  to  an  absolvitor.  That 
is  an  important  consideration.  The  authori|ies 
.are  clear  with  me.  The  proeeoator  of  himedf 
•hes  no  right  to  throw  up  his  lib^  after  it  has 
been  pleaded  to.  ^The  act  of  desertion  it 
not  htt  act,  but  that  of  the  Court,  without, 
wlupse  permission  and  deliverance  the  process 
cannot  oe  withdrawn  in  this  temporary  form.'' 
.  A  private  prosecutor  must  give  caution  to 
.insist  in  his  VAifX  **  Indeed  if  he  be  a  private 
prosecutor,  the  Court  have  already  caution 
trom  him  U>  insif t  on  tba^  libel|  and  to  this 


TM^WiUUm  S4g§f 


\a» 


they  may  h^  him  and.  lefae.  to.  oife  m^ 
letters  if  they  see  cause.  According^, ,  in  the 
debate  in  the  case  of  Aichibald,  the  proeeoutor 
innkly  disown*  all  pretensions  to  any  saidi 
arbitrary  power.  His  migesty's  solicitor  ^ 
presents, — that  he  observes,  in  the  informatioB 
on  the  part  of  the  panel,  very  alarming  coitse- 

Snenoes  are  eadeavouied  to  be.grafled  on  the 
octrine  pled  in  behalf  of  the  prooecator  ia 
this  case,  as  if  it  gave  to  tkie  public  piosecutor 
a  very  sirbitrary  power  of  Mpressittg  the  sub- 
jects in  this  country,  by  aesertiiig  diets  as 
often  as  his  (aney  euggested.  But  as  all  tihe 
alanning  consequences  pointed  outare  founded 
upon  the  supposition  of  a  doctrine  vduch. he 
never  meant  to  plead,  he  thinks  it  now  proper 
to  have  this  matter  clearly  understood^  as  the 

Sublic  pROsecutor  never  pleaded,  nor  doee  be 
esire  it  to  .be  b^eved  by  the  sul^ects  in  this 
countij,  that  he  has  any  arbitmry  power,  of 
deserting  diets  without  the  au^rity  and  in^ 
tervention  of  the  Court;  wh^  circumstavpe 
tota^y  removes  all  those  apprehensions  yrhkfk 
the  counsel  for  the  panel  has  grafted  npoq  the 
supposition  that  anarbatrair  power  of  deserW 
ing  diets  was  claimed  in  thi^  or  in  way  otbee 
case  bv  the  public  prosecutor.'' 

Beaily,  my  lord,  after  reading  that  Mssage^ 
and  the  whole  of  the  passages  in  M^  Humei 
I  submit  that  it  is  quite  idle  to  maintaiu  that 
the  public  prosecutor  has  it  in  his  power  in  idl 
cases  to  desert  his  libel,  and  throw  up  his  pn^ 
cess.  He  mav  do  so  before  the  panel  bsa 
pleaded ;  but  the  moment  the  panel  has  joined 
issue  with  him,  thfen  the  pleasure  of  the  Court 
must  be  taken  as  to  a  new  trial. 

The  assertion  if  manifestlv  groundless  tbae 
the. public  prosecutor  may  abudpn  an  indipt^ 
ment  after  it  has  been  pleaded  to,  and  briiOg  a 
new  indictment  Before  such  pleading  lie 
may  execute  a  new  indictment,  which  is  undof- 
stood  as  an  abandonment  of  the  dd.  But  it 
is  contrary  to  principle  and  authority  to  sim- 
pose,  that,  after  a  panel  has  pleeded,  the 
prosecutor  may  throw  up  his  UM,  and  haTe 
lecourse  to  a  new  indictment.  He  slay  be 
compelled  to  discuss  the  libel  to  which  die 
panel  has  pleaded.  If  it  be  thrown  out  upon 
the  relevancy,  the  prosecutor  may  bring  for- 
ward a  new  indictment.  But  suppose  (hat  it 
is  not  thrown  out  upon  the  relevancy,  that  the 
case  comes  tp.  trial,  and  that  the  pen^  obti^ 
an  aktoMbor  upon  that  trial,  the  prosecutor 
caunot  bring  a  new  trial  for  the  onence  there 
chaiged.  Therefore,  I  say  thai  the  public 
prosecutor  has  up  njgai^  without  the  au$liorihr 
of  the  Court,  to  abandon  this  indictment;  aiia 
although  he  has  taken  upon  himself  to  execute 
a  new  indictment,  he  cannot  abandon  .the  old 
indictment  vrithout  the  authority  of  tl^  Court. 
If  this  proposition  is  true,  the  public  pro- 
secutor must  do  something  more,  or  you  n^ist 
do  something  more  for  him,,  before  he  is  enti- 
tled to  proceed  on  the  indictment  before  your 
lordships. 

As  to  the  case  of  colonel  Charteris,  we  are 
Ipld  ip  answer,  |bat  for  some  tiniB  pMl  it  l|ee 


snl 


Jw  MmkuHeriKg  unttimflit'Oatht, 


A.  a  mr.' 


Xft3S 


be^a  tile'  pnbetite  -tbr  the  public  pfosecator  to 
wSbmoAim  a  fint  iodktBicnt,  without  tadcin|  any 
notice  of  it  to  the  Coitrt  at  all,  but  metetj  by 
execalini^  a  new  iadictiiient.  The  panel  ma^ 
BO  doabt  be  tried  on  this  new  indictment,  if 
he  is 'more  elrftid  of  the  old  than  the  new  one. 
But  whenever  the  point  of  objection  is  stated, 
JOG  nnist  go  back  to  the  principles  and  jndg- 
lAentii  of  yoor  loidAips  in  parallel  cases ;  and 
upon  these  it  is  dear,  that  till  the  pdblic  pro^ 
aecvtw  gets  thr  first  indictment  oat  of  hk 
w^y,  which  he  has  not  yet  done,  he  cannot 
pvoceed  on  the  second. 

If  he  ihodd  move  to  desert  the  diet  n'syfi 
cKer  on  the  fint  libel,  which  he  may  do,  liie 
«pieslion  will  be.  Whether  he  is  entitled  to  go 
ion  dis  pkn»  with  the  second  ?  We  have  tieen. 
4ni^  pBvinr  the  way  for  this  last  question, 
which  is  the  troe  snliject  for  yonr  consider- 
srtion*  Tne  cpiestion  oomes  to  be.  Whether 
the  public  firbsecntor,  npon  now  giving  np  the 
ftnt  libel,  is  entitled  to  proceed  on  the  se- 
^i^bnd  r  We'  sabmh  that  he  is  not.  For  it  ap- 
pears from'  the  case  of  Charteris,  that  the 
Conft' wbnld  not  allow  the  public  prosecotor 
fb  bave  in  dependence  several  Ubeb  at  the 
snie  time.'  lliey  forced  him  to  abandon 
tbrte  of  his  libels  altogether,  and  then  colonel 
Chltfleris  went  to  trial  on  the  fourth.  Sup- 
posing it'  had  been  dismissed  upon  the  rele- 
Wncy,  and  that  the  public  prosecutor  had 
ifsen  allowed  to  depart  from  tiiat'libel  by  the 
Court,  hie  might  have  brought  a  new  indict- 
liieiiti  But  I  ask  this,  upon  wlndi  the  whoTe 
point  now  depends;  Would  it  have  been 
eompetent  for  the  public  prosecutor,  after 
Ittvl&g  been  fbreed  by  the  Codrt  to  withdra.w 
^bee  of  the  libels,  before  diie  panel  was 
obliged  to  plead  to  the  fourth,  to  have  on  the 
Mne  day.  ettciited  these  other  three  libels, 
and  foned  the  panel  to  ao  on  and  plead  to 
thiemt  This  winild  have  been  considered  so 
giest  an  evasion  of  the  justice  done  by  the 
Cduft  just  befons,  that  H  would  not  have  been 
«ndared«  No  public  prosecutor  could  have 
«et  Us  fooe  to  that  Yet,  ^bere  is  the  differ- 
ence betwcien  diat  proceeding'  and  the  pro- 
ceeding in  the  preseht  iutande^  'Fhe  first 
libd  here  is  in  dependence,  and  a  new  one 
iMtt  been  executed  upon  the  same  grounds, 
dMNigh  not  in  the  same  form.  The'  posecutdr 
eneentes  a  ne#  indictment  before  tne  old  one 
Ins  been  disposed  of.  Is  there  any  difference 
between  this  case  and  the  case  of  colonel 
Charteris,  as  it  wotdd  have  existed,  if  the  pub- 
lic prasecotor,  after  abandoiung  three  indict- 
ments, had  proceeded  in  the  manner  vrhich  I 
liave  just  supposed  ? 

Your  loidsMps  have  been  t^d,  that  there  is 
lio  intention  to  do  any  injustice  to  my  client. 
'Idojwt  say  Aete  is.  I  say  they  havie  gone 
witmg  in  point  of  form— in  point  of  power — 
diSsy  have  no'  right  to'  proceed  as  they  are 
dbmg.  Tbouffh  die  puoKc  prosecutor  now 
n^  not  be  disposed  to  do  injustice,  his  suc- 
msor  may;  and  we  mi^t  as  well  set  afloat 
the  vrhole  forms  of  the  Court  at  once,  upon 


sa^nf  that  the  pubtie  prosedlitor  intends  no 
injustice. 

It  vras  said,  that  the  counsel  for  the  panel 
had  notice  that  a  new  indictment  ina  t6  be 
execnted,  and  that  the  former  indictment  was ' 
to  be  abandoned'.  I  am  one  of  the-  paneFs 
counsel,  and  I  did  not  ^et  notice  of  this.  But 
vrhat  signifies  the  notiee?  It  is  binding  on 
nobody-^it  is  not  binding  on  the  prosecutor, 
or  on  the  panel.  Sodi  a  thing  could  not  bn 
done  wfthcmt  the  Court.  Tt  was  very  well  in 
my  lord  advocate  to  have  such  polite  inteitf- 
tions  toward  the'  panel;  but  it  ift  not  fbr  hk 
lordship  to  determine  this  matter.  It  is  the 
Court,  vriiich  are  to  do  or  "not  do  what'  he 
wishes,  according  to  their  opinien  of  Ihtt  merits 
of  the  case. 

This  land  of  specialty  pleaded  by  the  pro^ 
secntor  signified  nothing.  l>own  to  the  present 
hour,  my  client  and  his  counsel  have  been 
forced  to  the  consideration  of  bodi  indicf- 
ments;  and  no  Uttle  consideration  has  been 
pven  to  both — and  that  is  the  hardship  winch 
It  is  the  object  of  the  law  to  prevent.  Upon 
the  whole,  therefore,  I  hope  that  I  am  not 
obliged  to  answer  this  indictment  before  the 
fint  shall  be  disposed  of— and  then  I  am  enti- 
tled to  the  benefit  of  ftill  tadiiekr,  after  the 
first  libel  shall'  be  abandoned.  I  akn  not 
bound  to  answer  to  this  indictment  vrithout 
any  warning.  If  the  prosecutor  had  no  right 
to  execute  that  indictment,  it  must  be  consi- 
dered as  not  executed  at  aU.  Fifteta  dayi^ 
at  all  events,  must  be  allowed  after  the  fin*- 
indictment  shall  be  legally  abandoniid. 

Mr.  j€§r^. — ^There  are  only  two  pointSi— . 

lardJdnocaU. — I  olject  to  more  thin  two 
counsel  for  the  panel  in  reply. 

Lord  Earmamd, — As  many  of  tht  pvMi's 
counsel  as  please  may  speak. 

Irsrd  Ado&oaU.'^KB  many  of  them  as  vrirfied 
might  have  spoken  before  the  Crown  vriaa 
called  upon  to  tfnsvrer,  but  they  cannot  now 
all  be  allowed  to  speak.  It  is  also'  irregtilar 
for  ft  juirior  counsel  to  speak  after  a  steieit 
counsel. 

Hr.  Jf^ri^.^What  have  you  to  do  With 
that? 

Lord  fiiBrmand.-*In  justice  to  myself,  I  must 
here  offer  an  explanation.  One  of  the  oldest 
cases  I  remember  is  the  trial  of  ProvOSst  tdooi- 
gomerie  in  1759.  Half  a  docen  counsel  theie 
spoke  wrMm.  I  have  myself  been  in  cases 
in  which  this  was  done,  having  spdcen  in  the 
middle  of  four  or  five  counsel ;  but  it  vras  at 
the  beginning,  in  answer  to  a  plea  to  the  lel^ 
vancy,  and  not  in  r^ly. 

LordJuttice  Cfer^— I  am  of  opinion  vKth  ford 
Bermand.  Here  the'  vrhole  eight  counsel  f6r 
the  panel  oiiffht  hilve  spoken  in  succession  im- 
mediately aner  Mr.  Cranstoun ;  but  I* know 
no  instance  of  two  replies  having  been  ad* 
ntiitted  for  a  panel. 

My  lords^  you  hlive  beard  thia  argument 


SSB]       ^7  GBOBGe  MI. 

what  are  your  opinions  on  toe  subject. 

Lord  JStrmmd, — Jn  eve  17  eaie  I  abouM  bfe 
4esirou0  of  gfttUng  anjr  infi^rmatimi  to  enable 
w^  io  sitftaiii  ^li^ctioiis  in  ikvom  of  a  pet- 
•oaer.'  But  my  opinion  k,  that  the  objection 
,in  tbe  prelent  case  moat  be  Kepelled^  bectnae 
.the  piiaoner  baa  no  inteveat  to.  ptead  the  ob- 
jftofcion. 

At  tlie  aame  ttme^  I  am  dispoeed  to  do  all 

rMte  to  the  argnment  of  Mr.  Granatoon. 
«tated»  ihaK  the  panel  had  pleaded  not 
<giii>l|r  tp  the  fimiier  todietment-r^thait  Inibrmar 
'tioQS  bad  been  ordarad  upon  objections  which 
mv»  atHted  lo  the  nleynney-T-lfaftt  a  new 
indictment  had  been  served  while  the  fonner 
indictaent  had  i»ot  bean  deaerted-^-and  that 
itbe  f<ffinor  indictment  oannot  be  deserted 
^vithout  the  authoritT  of  the  Court.  He 
.atatfldy  that  fifteen  days  farther  of  Mhcmb 
,iiii|^tba  of  material  adtaaftaga  to  the  panel; 
Mid  he  figured  ttroog  cases  of  hardship  which 
.4ha  Court  would  h»re  to  check ;  for  iottaace, 
.4bere  might  be  a  series  of  indictmentfy  upon 
#Qfna  one  of  which  the  king's  adrocsata  aught 
Uk9  it  ipto  his  h«ad  to  transfer  suddenly  tine 
4rial  to  Iiiv^meM  or  Aberdeen.  '  I  hope  no 
imch  thing  will  erer  happen;  bat  should  it 
liappen,  the  Court  has  power  to  redress  the 
gnevance. 

In  ooosideiing  jtfie  oljsection  which  has  bean 
ibronght  forvard^I  wish  to  know  vriiat  interest 
the  panel  has  to.  plead  it.  I  could  figure  a 
case  whsie  the  panel  might  have  a  strong  i»- 
terest  to  plead  sucH  an  objection;  and  then  I 
might  think  dlfierently  from  what  I  do  on  the 
fires^iit  occMtton. 

The  case  would  have  been  altogether  diHev- 
fnty  if  a  different  crime  had  beendi^rged  in 
the  second  indictment  from  what  was  diaiged 
in  the  first,  or  if  the  crime  had  been  differenUy 
gtis^  nr  if  fqqiethipg  had  been  added  by  the 
,|N>bUc  piosecator.  Qat  here  the  indictments 
#fe  tha  4fMna.  Something  is  left,  out  in  the 
second,  which  aj^ared  to  me  .objecti<^;iable 
in  toe  fif)|t^tbe  nfivative,  that  the  paoal 
hating  ''at  Glasgow,''  &c.  ^'wickedlr,  mali- 
cipusl^ri  and  ^mtprooiily  conspired  and  agreed 
with  ouer  evil  disposed  persons,  to  break  and 
disturb  the  public  peace,  to  change,  subvert, 
and  overthrow  the  government,  and  to  excite, 
move,  and  nd^  insurrection  and  reb^Hon, 
and  especially  to  hold  and  attend  secret  meet- 
ings, n>r  the  purpose  of  obtaining  annual 
parliaments  and  universal  suffrage  by  yt^Iawftil 
"means,  did,"  8ec.  But  are  the  pane's  counsel 
much  the  worse  in  their  cogitations  on  the 
second  trial,  from  this  passaee  being  struck 
out  of  the  indictment  ?  There  is  no  increase 
jia  ^  second  indictB}ient;  a^d^  with  tlie  dimi- 
nution wUcoI  h^ve  now  mentioned)  the  twp 
ic^ictnieata  ai;e  ip  the  same  t9rm<«.  The 
pai^,  itHerefore,  i^aa  nq  M^r««t  to  plead  the 
.(^e^jtioa  apon  t¥<^  M  appears  to  rely. 

It  is  true  that  the 'pros^Utar,  .in  lavr,  or  in 
¥^  «C  *»W>;i«B»ot^4>f  biP^s^^  4^«.the 


tridt/WiOkmU^ 


tMi 


4iat  fiat  did  tha  judgas  aTor  #1^  4t  iatp 
their  minds  <o  ask  tba prosecutor,  upo»as^ 
ocoasioQ,  why  he  deiwca  4^  diet  to  be  da- 
sarted  7  We  preanme  he  has.  gaod  ;resaana 
for  doing  80»  im  we  never  fudc  him  to  state 
those  jreaaone.  The  power  of  paaping  liroai  «r 
desartii^  an  iadiiitqient^  is  sabstant»a4y  in  hb 
m^eat/s  adaocate  or  hni  depaties< 

J  think  the  counsel  for  the  panel  woald  hava 
done  belter  to  have  withheld  their  otteetion* 
Qps  this  paoal  pleaded  to  the  present  indid- 
maot?  J  believe  not;  for  his  counsel  pjna- 
vented  him.  The  fir^t  indictment  had  aat 
gona  ta  a  jaiy^  aad  never  will.  jBefna  ait 
iadictment  go  to  a  jury,  it  has  l>aaa  Vy  pata* 
tice  in  the  power  of  the  pB0faca(cir  ai  wf 
time  to  p»sa  firam  itbylvn^ginga.aaooadA»- 
dictment;  and  it  ware  ;univise  to  pat -a  lash 
hand  to  a|i^  vanatian  in  the  procadaraiiaaii- 
minal  iriM**  Many  in^tanoes  mig^  be  cited 
of  a  ^TRt  indicti^ant  having  b^n  virMiaUf 
passed  ftom  by  a  sacoad  aamagy  and  taanr 
casei  ^  ithat  efiact  .were  'ditad  by  one  of  ihis 
learaad  g^tlemaui  withont  going  fni^^er  bnek 
than^ail}.  Thasa^yisasai^ifMailiar^ojiaj^)' 
I  wap  pre9?qt  at  sei^eral  of  4ha  tiials«  Tha 
lord  advocate  want  further  baqk,  apd  he  slatait 
the  o(#a  of  IVUndham.  I  taka  the  tme  Tiaar 
of  ^e  law  to  ;be  .j^hi4*^at  iba  aemn^  <{f  n 
new  indictment  israaabsAaAtlal  dereUctMpof 
a  fpraMt  indiatmant.  An  a|i|>UcaftiQn  to  <he 
Coi^?t  an  tfia  iml^apt  is  a  mare  master  of  lam. 
No  good  aaa  arise  iipm  snsiaiiaagtheolQe^ 
tion in  this  case;  and  M<^  not  tUidt  tfentin 
law  and  praatiea  it  can  )>a  anatainad. 

Lord  6M/im,— I  aia  notaava.  that  i  eaa  ar- 
rive at  the  same  condition  yri^h  mgf  bsoihar 
who  has  now  spolfLon^ 

I  think  it  fiur  to  state  in  ihe  outlet,  thm 
actual  hardship  is  a  plan  whi<;^  cannot  te 
stated  in  the  present  inat^ce.  I  do  nqjt^hiidE 
that  the  panel  can  complain  of  hardship ; 
na  snob  plaa»  I  belW^a*  i^  aaaously  ii 
on,  as  thai  of  actual  bardiMiip-  IV 
of  trtte  pcisonar's  oonnsal  is  aa  oUaotion.  in 
point  of  ibias,  foondad  ^i^pon  prineipi^  and  all 
mims  whidi  ragnlate  anamal  proeednra  are 
of  importance* 

The  case  of  Charteris  was  tha  first  nfenad 
to;  and  what  do  I  gather  from  thai  aaaa.? 
There  were  fonr  indictmaats ;  and  thapiisaaar 
was  brought  to  the  bar  under  the  charge  ooa- 
tained  in  all  these  four  indictments^  having 
pleaded  at  that  time  to  none  :0f  tbem.  Bis 
counsel  excepted  to  thiSi  and  I  thiidc  widi 
reason;  and,  in  consec|uenca  of  whatpaaaed, 
the  prosecutor  was  obliged  to  abandon  tbran 
of  iba  indictBMuts,  and  the  trial  pmeeaded 
npon  tba  fourth.  I  undemtood  Idr.Clai^.'^la 
ftay>  that  the  trial  djfd  not  pvoeefed  mstaM»; 
in  which  I  think  be  is.  mata&aik  I  think  thsl 
aD  that  lais  done  in  that  oaHi  waa  tofiad  ilr 
piasecutor  aouH  not  praoeed  on  siky  (ipe  in- 
4ictma^t  without  expressly  abandoniag.alMa 
rest;  and  I  understand  the  ^al  proeaadafi 

ia^^iaAeiy. ,  TMs  judgraeat,  whethat  r^ 


Jmr'AiminitierMg  miikfmfiU  Oaiht. 


ttSSl 

er  wronif  In  ibe  Mte  of  Chaiterit,  and  tlK>6gh 
mvdk  fomded  on,  seems  to  have  been  depart- 
ed Irmb  in  the  subsequent  practice  of  the 
Coorii  it  senm  lo  have  become  an  establisb- 
«d  praetiee^  reooBcileaUe  with  prindjple,  thai 
«  IMiblie .  pvostecmor  vaj  raise  indictments 
■gainsc  a  prisoner  in  soecetoion  for  any  peiiod, 
«>m1  Msy  bring  fainiy  when  he  chooses,  touiai, 
•nd  that  the  ptisoner  has  now  no  gnumd  for 
ol^ectioo  as  in  the  case  of  Charteiis.  I  iM>ld 
eOy  for  this  reason,  that  it  is  now  an  established 
fifinciple^  ^diat  in  eriminal  prosecutions,  a 
public  praaecutor^  by  raising  a  fresh  indict- 
sncBi  against  a  prisoner,  so  ^m>  passes  from  all 
teaser  indictments.  Suppose,  therefore,  that 
dbe  uaiMtttnate  man  at  me  bar  had  not  plead* 
«d  to  the  old  indictment,  I  should  have  consi- 
dered the  new  indictment  a  nrtual  abandon*- 
ment  of  the  former  one.  I  conceive  that  the 
practice  which  has  followed  the  case  of 
CSiarteBS,  b  reconciieable  to  pnnciple,-and  for 
this  reason,  thai  till  a  prisoner  pleads  to  an  in- 
dictment, the  public  prosecutor  has  the  dis- 
posal of  the  indictment  and  be  may  brin^  it  or 
aot  befine  the  Court — be  may  abandon  it  vir- 
tual^, or  expressly,' without  the  consent  of  the 
Ceeort. 

IJiai  is  what  the  practice  goes  to.  But  what 
is  the  case  here  ?  The  difference  between  this 
and  cdbnel  Charteris's  case  is,  that  here  the 
priscmer  did  plead  to  the  indictment,  ^d  what 
Was  the  consequence  of  bu  doing  so  ? — that 
the  indictment  wa^  no  longer  within  the  power 
of  the  public  prosecutor — ^he  no  longer  could 
desert  the  diet — that  is  all  within  the  exclusive 
power  of  the  Court.  If  I  am  Asked  whether, 
when  Utiscontettation  has  taken  place,  and  the 
pleading  of  the  prisoner  to  the  Indictment 
may  finrly  Ito  considered  as  an  act  of  litiscon- 
testation,, the  public  prosecutor  is  entitled,  of 
bis  otm  anthority,  to  desert  the  diet  or  aban- 
don the  charge  r  I  answer  in  the  negative. 
He  cannot  do  it  without  the  interposition  of 
the  autfaori^  of  this  Court. 

*  Tbet  question  is  decisive  to  a  certain  degree 
.on  the  pment  point.  If  he  cannot  abandon 
it  ezpiessly,  be  cannot  do  it  virtually-r^he 
cannot  do  it  by  implication — he  cannot  do  it 
Without  the  authority  of  the  Court.  It  is  laid 
down  bjT  ^^'  HumSir-i^iid  I  conceive  it  to  be 
a  moe^  important  principle  in  our  proceeding 
— tfbt  after  a  panel  has  pleaded  to  an  indict- 
ment^  |be.  authority  of  the  Court  must  be  had 
for  the  abandonment  of  that  indictment.  I  do 
not  talk  of  tinis  as  a  case  of  hardship ;  but  I 
eoneeiTe  hiiidilups  might  arise  from  the  exer- 
cise, by  %  public  prosecutor,  of  such  a  right 
as  Ue  maies^s  advocate  now  contends  for. 

The  pmUc  proeecntor  has  many  ptivilege». 
Masf  ^  jbilqrr  end  reasonnblj,  aiul  wisely, 
end  Ibr  tb^  most  proper  puiposcs,  given  to 
Ui^  isiicb  an  noLaihmed  to  a  private  prose*- 
tetoe;  AtiiiliieeBtfstalien  goes  through  all 
CM&.  Afitar  it^  neither  party  <^  go  out  of 
fSeoil  widsni  the  euthoritv  of -the  Court. 
'Hesae  ifiostsalce  tbe  nghsi,  the  aitaation,  and 
fwiWaanmit  eC  the  piwttc  preiecttler,  1^ 

you  xxxm. 


A.  D.  1817. 


[*«(» 


ferring  to  the  situation  of  the  private  prose- 
cutor in  similar  cases*  i  can  easily  conceive 
cases  to  exists  thcjogh  I  have  no  apprehensions 
of  their  existing,  in  which  it  might  oe  the  duty 
of  your  lordships,  in  point  of  justice  and  law, 
and  on  important  eonsiderations  of  every 
description,  to  aay  that  you  would  not  allow 
the  public  prosecutor  to  abandon  an  indict 
ment  and  take  up  a  new  one. 

I  apply  this  principle  to  the  present  ease. 
The  panel  has  pleaded  not  guilty  to  the  first 
indictment,  and  a  new  one  ham  been  raised. 
I  do  not  say  the  new  one  is  null — ^I  am  not 
prepared  to  go  that  length.  But  this,  much  I 
say,  that  this  does  not  extinguish  the  old  .one 
-Ahat  it  is  not  a  virtual  diK^aige  of  it,  ber 
cause  the  public  prosecutor  cannot  expresily 
disdiarge  or  desert  the  first  of  himself.  I 
conceive  that  the  first  stiU  subsists«4t  has  not 
been  dischaiged  by  any  atuthority  competent 
to  disdbarge  it.  tt  still  subsists;  ana  here 
the  prisoner  has  a  fresh  indictment  served 
against  him.  What  is  to  be  done  with  the 
present  indictment  ?  It  is.  not  null— but  whal 
the  prisoner  says  is,  I  must  have  full  tadud^ 
granted  me;  and  the  whole  questiou  is, 
whether  the  full  tnduour  shall  be  granted  him, 
YesorNo? 

I  think  that,  in  point  of  form,  you  are  bound 
to  dispose  of  the  first  indictment,  and  then  the 
question  is,  whether  you  will  allow  the  panel 
the  fifteen  days,  Yes  or  No  ? 

It  was  said  that  the  prisoner  has  no  interest 
to  plead  the  objection.  I  cannot  go  into  that. 
This  is  a  question  of  life  and  death,  and  he  is 
the  best  jodge  of  his  own  interest.  I  am  not 
lentitled  to  tell  him  that  he  has  no  interest  not 
•to  be  tried  to-day.  For  any  thing  I  know,  he 
has  a  great  interest — a  material  interest,  by 
which  his  life  may  be  preserved  or  prolonged' 
To  have  his  life  proloaged  even  for  fifleen  or 
sbcteto  days,  is  perhaps  a  serious  object  to 
him,  as  avoiding  nim  possibly  a  better  chance 
to  save  it  from  ue.  present  danger* 

If  tbe  practice  lounded  on  by  tbe  Crown 
counsel  were  of  long  standing,  inveterate,  and 
feconcileable  to  principle,  I  should  hold  it 
sufficient  to  authorise  the  proceeding  which  i# 
olijeeted  to  in  thk  case.  But  as  to  the  prac- 
tice cited  here,  where  an  indiotment  has  been 
pleaded  to  by  the  prisoner,  I  have  seen  ne 
eases  stated  prior  to  .1813.  The  ease  of 
SomervHle  in  I8ia,  and  that  of  Horn  in  1814, 
iwere  mentioned.  The  case  of  Mendham  I 
hafve  no  distinct  recollection  of.  I  take  it  for 
Uraated  it.was  coneetly  stated.  These  three 
cases  are  all  we  have  been  told  of,  which  truly 
epl^y  to  the  present  case.  I  cannot  pay  such 
jegard  to  these  cases,  as  to  be  of  opinion  that 
they  entitle  me  to  overrule  the  objection  ^ 
.Jlirs^  Becauie  they  are  too  recent  in  date,  and 
too  few  in  nnmben  for  regulating  our  decision: 
Saoondfy^  I  thibk.they  ought  not  to  be  M;tended 
to,  for  thisTeaton^  -  taacanse  I  da  not  -see  that 
the  ol^)ection  was  stated;  and  vi!e  all  know 
Imw  apt  the  best  men  are  to  fall  into  errors 
and  shght  irtegulaiities  when  not  put  cm  their 

0 


4271 


57  G£ORG£  III. 


gtiard  by  the  bar.  Wewert  told^  that  it  is 
%e  duty  of  the  Coart  to  watch  over  the  pto> 
ceedingSy  and  see  that  they  are  regular  and 
consonant  to  established  forms,  whether  any 
thing  be  stated  from  the  bar  or  not.  In  that 
obsmation  I  agree;  and  I  am  sure  that  I 
sneak  the  sentiments  of  the  Court  when  I  sav, 
that  we  are  sensible  of  the  anxious  and  able 
care  displayed  by  your  lordship  on  all  occft- 
sions  of  that  kind.  But  it  is  impossible  for 
any  man  to  attend-  to  every  thing,  I  say, 
therefore,  I  pay. much  the  less  regard  to  these 
cases,  because  they  were  not  argued  by  the 
bar.  They  are  cases  in  which  the  objection 
was  not  urged.  If  the  objection  had  been 
stated  the  Court  would  have  given  greater 
consideration  to  the  point.  I  nave  a  third 
reason,  viz.  that  I  cannot  reconcile  these  deci- 
sions to  strict  principle.  I  think  that  after  a 
panel  has  pleaded  to  an  indictment,  the  public 
prosecutor  cannot  pass  from  that  indictment 
without  the  authority  of  the  Court;  and  that 
he  cannot  virtually  abandon  a  first  indictment 
after  such  pleading,  merely  by  serving  a  second 
indictment  upon  the  prisoner. 

I  therefore  think  this  objection  is  well  found- 
ed, to  the  effect  that  it  is  our  duty  to  insist  that 
the  lord  advocate  shall  proceed  on  the  former 
indictment,  or  shall  now  move  the  Court  to  de« 
sert  it.  Whether  any  consequences  may  follow 
from  delay,  I  am  not  aware.  The  panel  asks 
fifteen  days  longer;  and,  if  he  is  right  in  point 
of  form,  I  cannot  refuse  his  demand,  on  the 
ground  that  he  has  no  interest  in  what  he  asks. 

Lord  PUmUfy — This  is  a  point  attended 
with  some  difficulty  ;  and  it  would  be  singular 
indeied,  if,^  after  attending  to  the  learned  plead- 
ings at  the  bar,  and  y^nai  we  have  heara  from 
the  bench,  I  could  say  I  fek  it  unattended 
with  difficulty.  My  impression  however  is, 
that  the  objection  is  not  well  founded.  In 
questions  of  this  description,  the  practice  is 
the  safest  guide  to  go  oy.  It  here  appean 
strong.  I  do  not  speak  particularly  ot  the 
case  of  Mendham ;  but  the  cases  of  Somer- 
ville  and  Horn  are  distinctly  in  point«— are 
identical  to  the  point  before  us. 

It  is  true  that  these  are  late  cases,  and  that 
na  others  have  been  mentioned.  But  let  it 
be  remembered,  that  this  objectioo  cmbcs 
upon  us  unprepared.  Neither  vbur  lordships 
nor  counsel  have  had  time  to  look  to  prece- 
dents ;  and  I  diink  it  would  be  ri|^t  to  have  a 
search  made  into  former  cases,  to  see  whether 
these  are  the  only  cases  which  are  the  same 
with  the  present. 

It  ie  certainly  true  that  these  eases  were  not 
argued  before  your  lordships ;  but  the  Court 
is  bound  to  attend,  and  always  does  attend  to 
the  relevancy  of  proceedings  of  this  kind,  and 
particuiariy  when  it  is  important  to  the  de- 
fence of  a  panel  at  the  bar.  The  Court  will 
in  all  such  cases  attend  to  the  regularity  of 
procedure ;  and  in  the  case  of  Somerville  this 
point  Was  suted  to  the  Court— it  wae  aot 
argued,  but  it  vras  not  overiooked. 


Trial  of  fFiOiam  Edgar  [328 

I  do  not  see  that  any  hardship  could  ariw 
from  holding  that  the  serving  of  a  new  indict- 
ment is  a  virtual  abuidonment  of  the  old. 
It  was  upon  that  principle  that  the  case  of 
Somerville  was  decided ;  and  if  I  did  not  uxf 
derstand  that  to  be  the  principle  in  the  case  of 
Somerville,  I  should  be  of  a  oifierent  opinion 
as  to  the  present  case.  I  see  no  hardship  to 
the  panel,  nor  any  want  of  principle  in  the 
rule.  It  is  upon  these  grounds,  though  with 
difficulty  and  hesitation,  that  I  think  the  ob* 
jection  cannot  be  sustained.  At  the  same 
time,  it  may  appear  to  be  of  importance,  and 
I  have  no  objection  to  have  the  poini  more 
fully  considered,  and  a  search  maae  for  pra^ 
cedents,  because  I  am  satisfied  that  when  the 
matter  is  investigated,  it  will  be  found  that 
the  Court  has  proceeded  upon  these  grounds 
in  other  cases. 

Lord  Re$ton, — The  first  inquiry  is,  whether 
this  (question  has  been  settled  or  not  by  prior 
practice?  If  it  is  not  so  settled,  I  agree  in 
the  opinion  which  Lord  Gillies  expressed. 

If  I  understand  the  quotations  that  were 
read  from  Mr.  Hume,  it  is  not  in  the  power  of 
the  public  prosecutor,  without  the  autnoritT  of 
the  Court,  to  pass  from  an  indictment  to'whic& 
a  panel  has  pleaded ;  and  the  panel  may  in* 
sist  that  the  case  should  now  go  on  upon  the 
first  indictment.  The  panel  riiould  not  Be 
exposed  to  the  hardship)  of  not  knowing  upon 
which  indictment  his  trial  is  to  proceed.  It  is 
in  the  power  of  the  Court  to  pass  from  the 
first  indictment  or  not,  upon  the  motion  of  the 
lord  advocate;  and  the  panel  should  not  be 
uncertain,  upon  coming  into  Court,  upon 
which  of  the  two  indictments  he  is  to  be  tried. 
It  would  be  a  hardship  to  put  him  in  that 
situation. 

It  was  said  that  the  indictments  are  ibm 
same,  or  the  one  only  a  part  of  the  other. 
That  certainly  does  appear  to  be  the  case; 
but  when  they  come  to  be  minutely  sifted^ 
other  circumstances  may  be  discovered,  of 
which  the  panel  may  avail  himself. 

I  think  ne  ought  to  have  fifteen  days  mdudm 
on  the  second  indictment,  after  the  authority 
of  the  Court  is  given  to  the  abandonment  of  the 
first  indictment. 

As  to  the  practice  which  has  been  cited. 
Lord  Gillies  stated  very  good  reasons  wi^  we 
should  not  be  bound  by  it.  It  is  only  or  firar 
years  standing,  and  the  objection  was  not 
stated'  in  any  of  the  cases  which  were  cited. 
The  oractice  cannot  therefore  be  binding  on 
the  Court  I  am  for  sustaining  the  objeCtioii, 
or  allowing  a  search  for  precedents.  The 
practice  is  periiaps  of  Icmger  staindfiag. 


Lord  Jmtiee  Cferle.— I  certainly  have  ne 
difficulty  in  etating.to  your  lordahipB,  ^lal^ 
notwithstanding  the  veiy  able  manner  in  wUd^ 
this  argument  has  been  urged  on  the  part  of 
the  prisoner,  and  notwithstanding  my  deib- 
Anee  for  the  opinions  of  my  brothen  on  tnj 
left  hand,  I  am  not  pfepoasd  ^orcoaeur  in  ih« 
oliectiQUwIiifikhis.WflD  hreoght  forward  in 


3SQJ 


Jitr  AimvKutmng  unla»gfiil  Oaiht. 


A.  D.  1817. 


[39» 


thk  cast ;  ^nd  if  driven  to  the  neeeisity  of 
ming  a  decided  opinion  at  present,  I.  most 
differ  from  these  learned  lords,  and  find  that 
.  the  objection  ought  not  to  be  sustained.  Not- 
withstanding the  weight  of  these  opinions,  you 
have  the  practice  established  in  point  of  fact 
— for,  from  the  deliberate  averment  of  the 
Counsel  for  the  Crown,  you  must  assume  that 
there  is  a  series  of  cases  in  which  yon  have 
acted  on  a  principle  directly  opposite  to  that 
which  is  now  contended  for  by  the  Counsel  for 
the  prisoner.  I  apprehend  that  it  is  also  a 
weighty  consideration  in  this  question,  that  in 
one  of  the  cases  which  has  been  cited,  as  to 
the  procedure  in  cases  like  the  present,  the 
prisoner  was  visited  by  most  exemplary  pu- 
nishment. I  allude  particularly  to  the  case  of 
Lindsay  Cranford,  who  was  sentenced  to  trans- 
|M>rtation  for  fourteen  vears.  Somerville  too 
was  unfortunate  indeed,  if  there  was  a  valid 
objection  which  might  have  been  stated 
against  his  trial,  as  the  sentence  upon  him 
was  imprisonment,  aeoampaaied  witn  an  ex- 
lubition  on  the  piUory.  These  are  precedents 
which  have  net  been  hitherto  doubted  by  the 
Court;  and  yet  our  attention  is  now  called 
to  this  ({uestion,  and  we  are  desired  to  austain 
the  obfection  of  the  panel's  counsel.  I  hold 
it  to  be  mj  sacred  duty,  sitting  here  as  a  Judge 
in  a  question  as  to  aform  of  procedure,  before 
I  pat  my  rash  haAd  to  alter  what  has  been 
the  practice,  to  be  convinced  by  argument, 
reason,  and  authority,  beyond  doubt,  that  that 
practice  so  uniformly  adopted,  and  followed 
by  SQcb  consequences,  is  oontrarv  to  law.  If 
I  did  not  so  act,  I  should  consider  myself  as 
in  foet  accessory  to  a  fundamental  subversion 
4^"  oor  criminal  procedure. 

But  although  my  opinion  is  different  from 
that  of  my  learned  brothers,  I  am  disposed  to 
ge  into  the  proposition  made  by  Lord  Pitmilly 
of  inquiring  into  the  fact,  Whether  or  not 
these  recent  eases  are  bottomed  upon  an 
-Meat  piactiee;  which,  if  established,  would 
go  greatly  to  do  away,  or  would  much  diminish 
&e  Impression  of  the  opposite  opinions  which 
tere  been  delivered. 

I  -dunk  it  no  more  dun  justice  to  the  lord 
advocate  to  say  of  the  statement  of  his  lord- 
ship, that  he  had  no  other  view  than  to  bring 
beme  the  Court  the  practice  prior  to  that 
staled  1^  Mr.  Dnimmond.  The  case  of 
Meodham  occurred  in  1804,  not  so  recent  as 
the  practice  ^uded  to  in  1812.  Mr.  Burnet, 
where  speaking  of  forgery,  page  190,  says, 
^  The  question  again  occurred  m  the  trial  of  the 
same  person  (Mendham)  in  October  1804,  for 
ottering  and  vending'  forged  notes.  The  Court 
esdared  informatioBS  on  the  point,  hut  the 
^[Kosecotor  aftervrardspaned/rim  the  charge,  and 
teoB^t  llendham  to  trial  on  a  different  indict- 
ment in  December  following,  for  forging  and 
uttering  Bank  of  England  notes,  with  an 
Intent  to  defiand  the  Bsuok  of  EngbLnd."  Your 
lordships  see,  that  Mr.  Burnet,  vrho  was 
fintoiltar  with  the  forms  of  the  Court,  and 
was  indottrioos  to  make  himself  acquainted 


with  every  thing  relating  to  the  criminal  law 
and  procedure,  states,  in  the  very  language 
which  is  objected  to  in  this  case,  that  the  pro- 
secutor afterwards  .passed  ftom  the  charge. 
This  is  another  case  to-be  added  to  that  traia 
of  precedents  which  have  been  cited. 

This  then  being  the  case ;  there  being  evi- 
dence before  you  of  a  practice  since  1804, 
and  in  one  of  the  cases,  the  attention  of  the 
Court  having  been  particularly  directed  to  the 
point  in  question, — a  circumstance  which  I 
now  positively  remember, — the  question  is. 
Whether  the  panel  is  now  entitled  to  state  to 
your  lordships,  that  there  is  such  a  formidable 
objection  to  this  practice,  in  point  of  principle^ 
that  you  ought  to  lay  it  aside,  and  establish  a 
new  practice  in  this  Court.  That  is  the  ex- 
tent of  the  argument  pressed  upon  you.  Cases 
formerly  were  not  so  fully  reported  as  they 
now  are ;  but  you  are  bound  to  hold,  that  in 
those  in  which  the  practice  now  objected  to 
was  followed,  it  had  the  consideration  of  the 
Court.  If  the  practice  had  .appeared  to  the 
Judges  to  be  objectionable,  they  would  have 
interfered,  .though  no  objections  were  stated 
by  the  panel's  counsel. 

I  cannot  agree  vrith  my  learned  brothers  as 
to  the  possibilitjr  of  hardship  arising  io  a  party 
from  toe  practice  which  has  been  followed 
in    this    case.     I  do   not  .think    that   the 

Sublic  prosecutor,  in  virtually  passing  from  a 
rst  indictment  by  serviog  a  second,  leaves 
the  panel  m  dubio  upon  which  indictment  he  is 
to  be  tried.  If  it  could  be  made  out  to  my  sa- 
tisfaction that  such  was  the  case,  I  should  in- 
deed see  something  like  hardship.  But  the 
moment  it  is  held  to  be  clear  law,  that  even 
after  the  debate  on  the  relevancy  of  an  indict* 
ment,  and  after  informations  ordered  on  tlie 
subject  of  the  objections  stated,  the  public 
prosecutor,  by  serving  a  second  indictment^ 
passes  from  the  first,  no  injury  can  ^possibly 
arise  to  a  panel ;  he  cannot  be  ignorant  upon 
which  of  the  indictments  he  is  to  he  tned. 
The  Counsel  must  know  .the  law;  and  when 
eonsiilted  by  him,  they  can  inform  him,  that 
though  five  indictments  have  been  served 
against  him,  it  is  only  the  last  to  which  he  has 
occasion  to  direct  his  attention.  It  is  the  duty 
of  counsel  for  an  accused,  in  reference  to 
what  I  hold  to  be  the  clear  rule  of  practice,  to 
give  the  panel  this  information,  and  then  ncf 
panel  can  be  held  in  doubt  as  to  the  indict- 
ment upon  which  his  jtrial  is  to  proceed.  It 
is  upon  a  settled  conviction  that.no  prejudice 
can  arise  to  a  panel  tn  such  a  situation  that  I 
think  the  objection  is  not  well-founded. 

Indictments,  where  there  has  been  no  plead- 
ing, are  every  day  passed  from,  with  or  with- 
out any  reason  appearing  on  the  face  of  the 
indictment.  I  say,  the  same  principle  applies 
to  a  case  like  the  present.  The  cases  are  the 
same  as  to  the  safety  of  the  prisoner.  There 
cannot  remain  in  his  mind  a  shadow  of  doubt 
as  to  the  indictment  upon  which  his  trial  is  to 
proceed ;  the  rule  of  practice  is  a  sufficient 
guide  for  him. 


3di] 


57  GEORGE  III. 


Trial  of  ]Vilimm  Btlgar 


[OSS 


Upon  th«M  yroQlidt,  I  my  9  I  ikovld  be  for 
lepelUiig  the  objettioD ;  but  I  oonenr  in  tba 
piropoBiliOD  wbieb  bum  boon  vomA%  to  yom:  loid^ 
ships,  that  in  a  point  of  pactioe,  which  is  of 
nnfifiite  consequence  to  the  aocased--4he  lew 
of  the  country-^-and  the  guidance  of  faturity-^ 
and  where  it  is  stated  that  a  recent  practice 
only  had  crept  in  which  was  unknown  in 
former  cases,  an  inquiry  should  be  made  to 
ascertain  clearly  how  the  matter  stands. 

A  small  indulgence  in  point  of  time  may  be 
granted.  The  parties  may  be  allowed  to  give 
in  short  Miovtes  of  the  state  of  the  practice, 
to  be  delivered  on  or  before  Saturday  next ; 
and  the  case  may  be  resumed  tlus  day 
se'enoight. 

Lord  Advocate. — ^There  is  another  trial,  that 
of  Douglas,*  fixed  for  Monday.  I  never  have 
felt  au^  desire  to  press  a  prisoner  in  point  of 
time,  if  any  object  whatever  w%8  stated  to  me 
for  his  wishing  delay.  If  the  panel's  counsel 
wish  for  time,  I  can  have  no  objection  to  grant 
il  them.  On  the  present  occasion,  I  only  think 
it  necessary  that  I  should  be  permitted  to 
state  upon  your  lordships*  record,  vrhat  I  now 
state  vtvd  voce,  that  I  aid  understand  that  by 
the  service  of  ihe  second  indictment  there  was 
a  virtual  abandonment  of  the  first. 

I  have  no  objection  to  this  point  being  settled, 
even  previous  to  Monday.  The  Minutes 
should  be  ordered  to  be  given  in  immediately, 
that  there  may  be  no  delay  in  bringing  on  the 
trial  afterwards,  as  we  may  be  told,  perhaps, 
that  no  indttcut  had  been  running  upon  a  se- 
cond indictment.  I  do  not  wish  to  press  the 
business ;  but  a  short  day  should  be  assigned 
for  the  inquiry  proposed,  which  may  be  com- 
{»leted  without  delay. 

Mr.  Clerk, — It  is  impossible  to  search  a  re- 
cord which  has  no  index,  in  two  days. 

Lotd  ChUiet, — There  may  be  a  debate  upon 
the  relevancy;  and,  by  possibility,  what  the 
lorjl-edvooate  tayt  may  tslte  place. 

Lord  Advocate. — ^I  passed  from  the  first  in- 
dictment by  executing  the  second,  and  the  ti»- 
ducUe  on  the  second  began  to  run  from  that 
time.  I  owe  too  much  to  the  law  and  the 
decisions  of  your  lordships,  not  to  oppose 
the  objection  which  has  been  brought  fi)rward 
to  day. 

LordJuttiee  Clerk, — ^Therais  to  be  no  argu- 
ment in  the  minutes.  They  are  to  be  seen  imd 
interchanged. 

c  

Lord  Advocate, — ^With  regard  to  the  terms  of 
your  interlocutor,  a  diet  cannot  be  continued 

rto  an  indictment  which  has  been  passed  from, 
passed  from  the  first  indictment,  and  a  ma- 
jority of  the  Court  agree  that  the  first  does  not 
now  subsist. 

Lord  Ot/lMt.F*The  authority  of  the  Court 
roust  be  obtained  to  the  passing  from  that  in^ 
dictment. 


.  Iprd  Jmtim  CMk.--Wt  ke^  evaij  thing 
entire. 

Lord  Advocate. — ^The  question  for  your  con- 
sideration has  not  arisen  under  the  first,  but 
uDder  the  second  indictment.  Your  lordshipi 
called  the  second  indictment ;  you  called  tb^ 
panel  to  plead  to  it ;  and  in  bar  of  his  doing 
so,  a  motion  was  made  that  the  trial  should  not 
take  place  upon  that  indictment ;  and  the  ques- 
tion IS,  whether  the  trial  can  proceed  ou  it  or 
not  ?  Therefore  you  cannot  proceed  on  anj 
other,  or  continue  any  other  than  the  second 
indictment.  A  majority  of  your  lordships  are 
of  opinion  that  the  first  indictment  was,  yir^ 
tiially  passed  from,  and  I  called  the  diet  of  no 
other  indictment  than  the  second. 


■V*. 


•  VideFott. 


i%efoUowkig  wmutei  of  the  debate  were  them 
entered  ttpon  fAe  record. 

CraneUMB,  for  the  paa^  objatiedg — 
That  il  was  incompetent  to  serve  od«^  libel 
against «  panel,  while  another^  upon  whid^ 
he  hfkd  siready  joined  issue  by  ple^tding^ 
was  still  current  against  him  ;  That  the 
first  libel,  having  been  pleaded  to  in  fiic^ 
of  the  Court,  was  no  longer  eub  potettate 
of  the  public  prosecutor,  and  could  notb* 
deserted,  or  otherwise  disposed  of,  hot  bv 
iudgment  of  the  Court :  That  tlus  Ube^ 
being  still  in  fiDrce  against  the  panel,  mm 
the  only  one  against  which  he  could  nofw 
be  called  to  defend  himself;  and  that  iit 
vras  not  till  after  it  had  been  disposed  of 
by  sentence  of  their  lordships^  thai  there 
was  room  lor  the  semoe  of  a  second* 
against  which  tbe  panel  was  entitled  to  hav^ 
the  full  mdMcim  of  fifteen  days  to  prepare 
for  his  defence. 

Home  DniBUBond,  for  his  mijesty'aad- 
vocaike,  aatwered^ — That  the  proceeding 
4ipon  this  oocasion  ia  sanctioned  bv  the 
established  practice  of  the  Court;  and  thai 
the  very  same  oourae  has  been  invariablf 
followed  in  every  caae  wh^o  the  same 
drcumstanoes  have  occurred.  So,  for  ex- 
ample»  in  the  case  of  Lindsay  Cranford, 
indicted  to  stand  trial  on  the  9th  Jannaiy 
1812,  when  the  diet  being  continued  tifl 
3rd  February,  new  criminal  letters  were 
in  the  meahtime  raised,  the  diet  whereof 
fell  on  the  same  day,  and  the  trial  pro- 
ceeded. Thomas  Somerville  was  indicted 
to  stand  trial  on  the  25th  Janoary  1818. 
He  pleaded  not  guilty ;  and  after  a  debate 
on  tne  relevancy  of  the  libel,  informatioii^ 
were  ordered  to  be  lodged  on  the  15th 
.  Febniaiy ;  but  new  criminal  letten  were 
raised,  the  diet  whereof  fell  on  die  aaaie 
day,  ttid  the  trial  proceeded*  A  question 
was  asked  in  this  case  by  one  of  the  jodgee» 
if  it  would  not  be  proper  to  desert  the  diet 
of  the  first  libel  r  but  it  waft  amwerfO^ 
tha^  a  desertioa  might  be  aigued  to  affect 
the  second  also;  and  thai  the  former  wa* 
held  to  be  abandooed  1^  the  aenrioe  of  m 


883] 


Jot  AHAkimhkg  ««te|^  Oa<b. 


A.  D.  mi 


(B8« 


bere  to  the  pndSoe ;  avid  the  case  pro- 
ceeded. In  tlie  caset  of  Joha  Hom»  JoDe 
13th  and  July  6.tb  1814,  and  of  Joha  Bell, 
who  pleaded  giiilty  on  the  first  oaUing  of 
the  diet,  January  9th  and  Fieibraary  3id 
and  loth,  1817,  similar  proceedings  look 

eace;  aa  also  in  the  preyious  case  of 
endham  in  1804. 

2do,  His  majesty's  adrocate  possesses 
an  uncontrolled  power  orer  his  iKAanct  in 
all  stages  of  a  criminal  process.  He  is  not 
bound^as  a  private  prosecutpr  is,  by  statute, 
to  insist  at  the  appointed  diet,  but  may  at 
all  times  abandon  or  pass  from  any  indict- 
ment he  has  raised,  or  any  part  thereof; 
and  he  does  so  in  daily  practice,  according 
to  his  pleasure*  And  if  he  exercise  this 
power  at  any  time  before  an  assize  is  set 
to  try  the  case,  he  is  still  at  liberty  to 
insist  of  new  against  the  panel  in  another 
indictment  for  the  same  offence. 

3tio,  The  remedy  for  the  possible  abuses 
that  may  follow  from  this  power,  is  to  be 
found,  not  in  attempting  to  compel  the 
prosecutor  to  maintain  an  instancy  whidi 
ne  has  dropped,  orer  whldi  the  Court  have 
BO  control,  and  for  which  the  panel  has  no 
interest  to^  insist,  as  he  is  out  of  Court  by 
the  abandonment  of  the  charge  but  in 
opposing  its  oppresxiTe  renewal  or  con- 
tinuation, when  the  Court  may,  on  suf- 
ficient cause  being  shewn,  desert  the  diet 

4to,  No  objection  is  ot  can  be  made  to 
the  numberless  examples  of  an  instance 
dropped  where  the  panel  has  never  pleaded 
to  the  charge.  Now  this  case  is  in  nowise 
different  in  principle ;  for  the  parties  can 
ui  no  sense  be  said  to  have  '^  joined  issue" 
befoiia  an  assise  is  set ;  no  «plea  or  state- 
ment of  tacts  beine  i&nal  Inal  is  enteied 
More  the  judges  of  the  fact  are  named ; 
nor  can  a  panel  have  a  jim  quantum  in  his 
own  plea.  The  doctrine  of  jmmng  time 
or  Uiucontettaiionf  has  no  existence  in  this 
court,  being  foanded  in  a  presumed  ju- 
dicial contract  between  the  parties;  a 
thing  inconsistent  with  the  first  principles 
of  criminal  law. 

Lastly. — Service  of  a  second  libel  has, 
in  the  recent  practice  of  the  Court,  been 
held  to  imply  the  virtual  abandonment  of 
the  first ;  and,  consequently,  there  is  no 
ground  for  the  complaint  of  two  indict- 
ments subsisting  at  once  against  the  panel, 
and  of  his  ancertainty  to  which  he  may  be 
called  upon  to  answer.  Accordingly,  his 
najeaty's  advocate  dedares,  that  hebAs 
abandoned  the  first  libel ;  and  he  has  no 
objectioQ  to  aath^nticate  this  statement  on 
the  leeoid  in  ^y  form  the  Court  may  thmk 
fit;  and  this  he  appieiiends  18  aU  the  panel 
Ims  any  ri^t  to  requite. 

As  to  the  taAiCtif  of  fifteen  days,  tiiere 
is  nothing  In  the  aoi  of  paiHameat  to  pre- 
mitlht  service  of  a  second  libiel 


the  OEisleBoa  of  « 16m»  oner;  aaS  it  is 
contrary  Co  no  prindple,  and  sanctioned 
liy  the  inveterate  pnK»^  of  the  Court. 


The  Lord  Justice  dei^  and  Lords' com* 
missioners  of  Justiciary  having  oonsfdered 
the  foregoing  objection,  wifli  the  answer 
thereto,  and  heard  parties'  procuraton 
tliereupon  at  neat  length,  before  afiswer, 
ordain  parties^  procurators  to  pi^pare  and 
give  in  minutes,  stating  the  practice  re- 
^tiv^  to  the  said  olpectipn;  to  see  and 
interchange  these  minutes ;  and  to  print 
and  lodge  the  same  in  tiie  hands  of  tiie 
clerk  of  court  between  and  Saturday  next, 
in  order  to  be  recorded.  Continue  the 
diet  against  the  panel,  and  whole  other 
diets  m  court,  tiU  Monday  next,  at  tea 
o'clock  forenoon,  in  this  place :  And  or- 
dain parties^  witness^,  assizers,  and  sJI 
concerned,  then  to  attend,  each  under  the 
pains  of  law;  and  the  panel  in  the 
meantime  to  be  carried  back  to  the  Castle 
of  j^inburgh. 

(Signed)    D,  Botlk,  J.  P.  D. 


BUNl/TES  or  Search  ov  tbb   Books  ov 
AnjouBKAL,  From  lif  January  1777. 

Alexander   Penrose   Citming,  £s<|uire, 
against  John  Lawson.  Perjury,  1785. 

The  dietwas  deserted  pfo/aoo«/ tombre  on 
1st  Februaiy  1785,  the  panel  not  Tuiving 
pleaded.  After  the  interiocator  deserting 
the  diet,  ^  Mr.  Erskine  then  represented 
that  new  criminal  letters  had  been  raisea 
and  executed,  at  the  instance  of  Mr* 
Cuming  of  Altyre,  against  the  said  John 
Lawson,  the  diet  thereof  stood  ooatinued 
to  thiA  day,''  The  Court  continued  the 
diet  upon  these  last  criminal  letters  to  the 
14th  of  February;  on  which  day  the 
panel  pleaded  not  guilty,  and  informations 
were  ordered.  He  was  afterwaids'' tried, 
and  found  not  guilty. 

John  Burns  and  Alrxanbrr  Bailur 
VRitcH.  Atumli,  17B0»    * 

The  diet  was  called  on  21st  I>ecember 
1789,  when  Veitch  was  outlawed;  and 
the  diet  continued  against  Bums  to  18th 
January  1790,  before  he  had  pleaded  to 
the  charge.  In  the  mean  time,  Veiteh 
applied  to  the  Court  tobe  reponed  against 
the  sentence  of  fugitatioh. 

On  i6ih  December  1789,  Burns  and 
Veitch  were  served  with  a  new  indictment 
for'  trial  on  the  said  18th  of  January. 
Upon  that  day  the  Court  ad^oatned  to  the 
25th ;  from  which  it  was  a^ouned  to  the 
26th,  and  iirom -the  26th  .to  the  let 
February.  The  trial  proceeded  on  1st 
February,  when  the  pnels<«rere  tried  and 
convicted.  .  '       I   , 


S36] 


57  GEORGB  IIL 


^WHUam  Edgar 


[336 


BEftBYi   RoBBKXSONy  Alld    CaLLAWDBB,^ 

Se^aUm^    1793. 

Upon  28tk  JanuBiy,  diet  was  called ; 
Callander  was  outlawed;  and  the  diet 
was  continued  against  the  other  prisoners 
(who  had  not  pleaded  tO' the  indictment), 
till  11th  Febmaiy,  when  the  instance  was 
allowed  to  fsXX, 

On  18th  February  they  were  tried  and 
connoted  on  an  indictment  which  had 
been  served  previous  to  the  said  11th  of 
February. 

Alexavdeb  ScoTT.f    SedUian.    1794. 

Upon  20th  January  the  diet  was  called 
and  deserted  pro  loco  et  tempore;  but, 
upon  the  ISth,  anew  indictment  had  been 
served  against  the  prisoner,  chargiAg  him 
to  compear  upon  3a  February. 

On  3d  February  the  diet  of  the  second 
indictment  was  called,  and  Scott  was 
fuiitated. 

RrpHABO  Mbvoham,  Forgety.  1804. 

Ricjianl  Mendham  was  cited  to  com- 
pear on  10th  October  1804,  when  he 
pleaded  not  guilty. 

Informations  ordered  to  be  given  in  on 
or  before  30th  October :  diet  continued 
to  1st  November ;  further  continuation  to 
13th  November,  when  whole  diets  of 
court  continued  to  14th;  on  which  day, 
instance  aRainst  Mendham  dropt. 

New  indictment  served  on  3rd  Novem- 
ber, charging  him  to  appear  the  19th 
November.  On  that  day,  a  continuation 
to  26th  November;  then  continued  to 
lZ9th,  and  from  Uiatto  3rd  December; 
long  pleading  on  the  relevancy ;  and,  after 
debate,  his  majesty's  advocate  passed 
from  the  libel,  so  far  as  laid  on  the  com- 
mon law;  and  diet  continued  till  next  day. 

4th  December,  continued  till  7th  De- 
cember; continued  till  next  day.  8th, 
further  continued  till  10th ;  on  which 
day,  interlocutor  on  relevancy;  not  rele- 
vant ;  dismissed  from  the  bar. 

Alexanoeb  Campbell.      T^eft   and 
Robbery.    1809. 

After  pleading  not  guiltr,  the  lord  ad- 
Tocs(te  representod,  that,  for  the  present, 
he  passed  from  the  third  charge  in  the  in- 
dictment, viz.  the  theft  committed  at  the 
inn  at  Dunfermline ;  but  reserving  to  the 
public  prosecutor  to  proceed  against  the 
panel  on  that  charge  in  a  new  indictment, 
if  he  shall  deem  it  proper  so  to  do ;  and 
therefore  restricts  tne  indictment  to  the 
two  charges  of  robbery. 

John  Likdsay  Cbaufobd  and  James 
Bbaoley.  Forgery  ofwritmgt,  January 
8,  1812. 

Diet  continued  on  motion  of  panels 

•  rt<fe.2.How.Mod.St.Tr.79.  ' 

i  Vide  2  How.  Utod.  St.  Tr.  383. 


tiH  ad  February ;  did  not  plead  ;  in  the 
mean  time,  sen^  with  a  new  libel  to 
stand  trial  on  the  -  3rd  of  February.  Trial 
proceeded  accordingly. 

Napieb  and  Grotto:    Murder  and 
BMery,    March  31,  1812. 

-  After  pleading  to  the  indictment,  the 
prosecutor  passes  from  the  charge  of 
murder,  and  all  the  charges  of  robbery, 
except  the  robbery  alleged  to  have  been 
committed  on  Peter  Bruce  and  J.  Buchan 
Brodie.* 

The  Court  find  the  indictment,  as 
limited  by  the  foregoing  minute,  relevant 
to  infer  toe  pains  of  law. 

Thomas  Sommbbville.     Petjury. 
January  25,  1813. 

Pleaded  not  guilty.  Debate  on  rele- 
vancy; and  informations  ordered  to  be 
fiven  in;  and  diet  condnued  till  15.th 
February.  In  the  mean  time,  a  new  in- 
dictment served  on  the  panel,  calling  him 
to  stand  trial  on  said  15th  February. 
IVial  proceeded  accordingly ;  and  Som- 
merville  convicted.  Imprisoned,  fined, 
and  put  on  the  pillory. 

John  Hobn.    SelUng  Forged  Notes. 
June  13,  1813. 

Pleaded  not  guilty.  Informations  order- 
ed, and  diet  continued  till  12th  July,  Iq 
the  mean  time  new  libel  raised,  and  served 
for  trial  on  6th  July ;  when  panel  again 
pleaded  not  guilty,  and  the  order  fpr  in- 
formations renewed ;  on  advising  which, 
libel  was  found  relevant,  on  15tb  July, 
when  panel  pleaded  guilty,  and  was 
sentenced  to  transportation. 

Bell  and  Do vo  las.     Uttering  Forged 
Notee,    January  9,  1817. 

Diet  against  Douglas  desertedpro  loco ei 
tanpore.  Bell  pleaded  guilty.  The  Court 
ordered  informations  on  the  relevancy  of 
the  indictment,  and  continued  the  diet 
against  the  panel  John  Bell,  till  3Td  Fe* 
bruary.  In  the  mean  time,  a  new  libel 
served  for  10th  February,  when  trial  pro- 
ceeded, and  Bell  pleaded  guilty  again, 
and  had  sentence  of  transportation,  the 
libel  being  restricted.f 


*  Many  cases  of  abandoning  or  passing  from 
a  part  of  the  charge  might  be  produced ;  but 
it  must  be  admitted  to  be  a  common  practice, 
as,  for  example,  in  cases  of  child-murder, 
where  the  charge  at  common  law  is  frequently 
passed  fh>tn,  upon  confession  of  the  statutory 
offence.  H.  H.  D. . 

t  Nble.— -There  are  in  this  period  various 
examples  of  diets  deserted,  on  the  motion  of 
|he  prosecutor,  pro  loco  et  tempore f  after  plead* 
in([  to  the  char^  and  af^r  interlocutor  ^f  re- 
levancy, which  it  IS  thought  unnecessary  to 
produce,  as  the  coinpetency  of  that  proceeding 
18  settled  law.  H.  H«  D. 


2371 


Jht  AdmimiUnttg.  unkmfid  Oaihit 


ADDITIONAL    MINUTES    or    csh«| 

TAIN  Cases  bisyovd  the.  Psbiod  op 
Sbarck. 

IsoBEL  NicoLsoK.    Fire  Raiting. 
June  25,  1711. 

Indicted  and  accased,  &c. 

Hbe  Lord  Justice  Clerk  and  commis- 
sionen  of  justiciary^  at  desire  and  with 
consent  of  her  majesty's  adTocate,  desert 
the  diet  of  the  first  indictment  raised  at 
the  instance  of  her  majesty's  advocate 
against  the  said  Isobel  NicoJson,  panel; 
but  prqndioe  to  him  to  insist  in  his  other 
indictment  already  raised  and  execute 
against  the  peael)  as  accords. 

Patrick  Haxiltoh  of  Green.    Murder. 
July  30,  1714. 

Mr.  Dnncan  Forbes,  his  majesty's  ad- 
Yooate,  consents  to  the  deserting  of  the 
diet  against  PatiidL  Hamilton,  younger, 
of  Green,  upon*,  this  libel,  without  pre- 
judice to  him  to  insist  in  the  new  inaict- 
ment  raised  at  the  instance  of  his  ma- 
jesty's advocate  against  him.    (SieSub.) 

Dun.  Forbes. 

Tbe  Lord  Justice  Clerk  and  commis- 
stoners  of  justiciary,  in  respect  of  the 
above  consent,  desert  the  diet  against  the 
above  Patrick  Hamilton,  younger,  of 
Green,  upon  this  indictment,  wiUiout 
prejudice  to  the  pursuer  to  insist  upon 
the  new  indictment,  as  accords. 

(Signed)    Ad;  Cockbubk,  J.  P.  D. 

This  after  informations  given  in  and 
recorded,  and  several  adjournments  of 
tlie  diets. 

AvDRsw  Feknie,  and  Others.  Indicted 
for  Sedition,  Debate ;  and  Infbrma* 
tions  ordered.    May  24. 1720. 

July  28. — ^Mr.  Walter  Stewart,  his  ma- 
jestv's  solicitor  and  advocate^epule,  for 
his  highness'  interest,  judicially  consents 
to  the  deserting  of  the  diet  against  the  with* 
in  named  and  designed  iUidrew'Femie, 
ice.  wit)iont  prejudice  to  his  majesty's 
advocate  of  insisting  a^nst  such  against 
lAom  new  libels  are  raised,  as  aocoras. 

The  Lord  Justice  Clerk  and  commis- 
nonerj  of  justiciary,  in  respect  of  the 
sJMve  consent,  desert  the  diet  agaidst  the 
said  Andrew  Femie  and  others,  above- 
named,  wi^out  prejudice  to  his  majesty's 
advocate  of  insisting  against  such  of  them 
against  ivhom  new  libels  are  raised,  as 
aooordsl 

(Signed)    An.  Cocxbvbv,  J.  P.  D* 

.'  »         » 

The  second  libd  beiny  called, 
JiiilrM  Andrew  Fenve,  kc.  Indicted 
«ldaecnsed,-fcc.  Debate;  and informaf> 
tions  ordered.  The  informations  ,  after- 
waidB|ivenin,  found  relevant,  and  trial 
ptooeeos. 


A.  D.  1817;  1ji39 

JiJins  IiiGLia^  ladwelter  in  Leitii.  In* 
dieted  and,  accused  as  ^Ity  of 
Thefts  B4Mery,  aid  Friecm-irmJMig, 
4«.  August  24,  1720. 

m 

Diet  continued  till  26th  September,  and 
afterwards  to  17th  October.  On  which 
day, 


hdirm  James  Inglis.    Indicted  and 
cused,  id  in  dkprecedefUL 

Mr.  Robert  Dundas,  lus  majeat/s  ad- 
vocate, for  his  highness'  interest,  jnakially 
consents'to  the  deserting  of  the  diet  of 
the  within  indictment  against  James 
Inglis,  panel,  without  pr^iMlice  of  insist- 
ing  in  the  new  indictment^  as  aecpfds. 
(Signed)    Ro.  DuwnAS. 

• 

The  lords  commissioners  of  justiciary, 
in  respect  of  the  abo?e  consent,  desert 
the  diet  upon  this  libel  against  the  said 
Jfumes  Inglis,  without  prejudice  of  in- 
sisting on  the  new  libd,  as  accords. 


Inlran  James  Inglis,*  panel. 
Indicted  and  accused  on  the  new  in* 
dictment.    Informations  ordered* 


MM. 


MoNCBiBFF  Stated*  That  in  oompUanesr 
with  the  order  of  the  Court,  a  search  had 
been  made  in  the  Books  of  Adjournal  for 
precedents  applicable  to  the  question  now 
before  the  Court.  That  a  search  from 
the  year  1777  downwards,  had  tot  been 
made,  and  the  result  had  been  communi- 
c^ed  to  the  panel's  counsel  some,  daya 
ago;  but  that  alter  this  a  forther  search 
had,  it  seems,  been  made,iwhich'  appear* 
to  go  back  to  the  beginning  of  the  last 
centttty :  and  the  statement  of  thecases 
so  found  was  only  communicated  late  on 
this  day.    (May  23.) 

That  on  the  part  of  the  panel  i^  may 
now  be  assumed,  that  the  (Jburt  l^ts  b^ 
fore  it  every  one  example  which  his  ma- 
jesty's advocate  has  been  able  to  discover, 
in  the  course  of  more  than  a  eentwy,  of 
any  proceeding  which  he  thinks-  cafcu- 
lated  to.  suTOort  th^  measure  which  has 
been  adopted  in  this  case,  or  to  meiet  tha 
objection  foundect  on  th^  deari^t  princi- 
ples of  law. 

That  on  the  resiilt  of  this  seanh  the 
following  remaiks  are  humbly  sijibmit- 
ted: — 

Ittf  That  there  }b  not  oiU  :e3^mple  in 

.the  whole  practice  of  the  Court,  in  vrhich 

.  the  same  0Djectipi\  which  is  h^re  insisted 

on  was  stated  to  the  Cour^  and  rspeUid 

.  hy  a  judgment  ' 

24  That  the  lord,  advocate  haa  pointed 

the.  statement  with  recard  to  .tiiose  caaei 
on  which  it  is  pr^uined  he  means  19  rely; 
ai}d  that,  as- for  as  the  panel's  couni^  cuk 
discover,  the  only  cases  in  the  long  period 
which  hate  the  smallcet  tendency  to  shew 
any  pmctioe  la  f aT^ni  of  the  proeeonin^ 


0893        ^  GfiORGB  UL 

•  et  ii}AditnxLrtfAtm^^  htting  such 
a  tendent^y  are  hoo  cases  m  1714  and 
VMf  onei^ase  in  1804,  two  hi  1813,  and 
0n0ial817.  Beiweentlieyear  1790,  and 
the  jtar  1804,  tbe  pilisecator  4ias  not 
beeii  aUe  to  find  cfie  single  case  in  the 
vecoid,.in  wUcn,  after  a  panel  had  plead- 
ed to  an  indictment,  a  libel  Was  served 
tuftd  susbuned  without  a  prewhm  desertion 
of  the  diet  on  Ihe-flrst  indietoent.  ^ 

8r«^  TlAl  to  sliew  this,  lie  iAiooldshortly 
taka  notice  of  eacli  of  the  oaies  pHnted 
•  by  iM  majisty^i  adrocate* 

On  the  first  seaicb,  the  folkMriog  state- 
ment is  sabmitted :-« 

Mm  Jjmmm^  1785.~]|i  this  case  the 
pancA'had  not  fUaded, 

Burm  and  Veitck,  1789.— Paneb  had 
mot  pleaded. 

&ry^  RoberUon^  and  CaUaukr,^  1793. 
—Panels  bad  not  nhadtd, 

Akxanda-^Scoif.firU^TvieXhfdnoi 
plfadffl, 

Rkkatd  Jfendkam,  1804.— Tn  Uiis  case 
lie  panel  bad  pleaded  nbt  ffuilty.  Infor- 
mafiotts  wereordisred;  and  several  con* 
tinuations  of  the  diet  took  place,  the  last 
^  the  t4th,  November.  On  that  day,  it 
IS  said,  the  instance  vras  dropped:  And 
in  the  mean  time  a  new  indictment  had 
l>een.n^ed  on  the  3rd  November.  This, 
.  IhmfiMPe.  IS  one  case,  in  which,  after  a 
parly  bad  pleaded,  a  new  indictment  was 
simred  before  the  diet  oh  die  otiier  had 
bten  dtertUd  ^  the  aiitfioiity  of  the 
Court,  'and  'witiiout  anT  Jradi  desertion. 
Biit.the-CbQrt  win  1)e  pleased  M  observe, 
X|iat  In  that  cale  the  pftnerdetiiy  bad  no , 
ititef^t  to  make  tlie  objeolkfn,  but  quite 
'iBe  reverse.  For  the  iMotid  iliditftment 
was  eqtulty  in^evaint  with  the  first ;  and 
foooidingly  the^  Court,  after  full  dbbate, 
onleM  iuorm^tions;  attd  after  various 
•4jdomnient8,the  libel  wasybiaii  ntfT  rek- 
0«il,  and  the  iMihel  was  diaNtfMBd,/$ipm  ^ 
bar.  Vost  ciearlt,  therefore,  it  w4s  not 
bis  jn^rftt  to  make  any  e/bjection  to  the 
^irvite  of  the  iec6nd  indittmeht. 

Alexander  Cannbeli,  18Q9.^this  is  not 

a  cte  kpptitebie  to  the.  poiM  sk   ail. 

'    'There  was  no  qaeMMmslbottt  any  new  itt- 

,dictmep|;  and  the  ciroittMtailce  ^f  tiie 

jWbHcpibsaiieufor  fiairingfrote  particular 

diaigir  IB  tfd  indidlfiie&t^ Jntelidinff  or 

.  leservinff  the  power  afterwards  %o  Aose  a 

isew  iilditetmeiifti  ts  whoify'  tmMteiial  to 

.ihe^^fl|^.    Bututaayir^yltis^fauii^ 

lAy  apprehended,  thkt .  even  lUs  takes 

■     k^a^  orily  with  (ho  c^ieiit  of  the  Court, 

whicl^  is  expressed  By  the  forms,  of  the; 

Mttifedifororibevattcy.    ^^ 

;  1w  if  ^e  of  Ae  eaM  wliicli  WliA  Quoted 
/Ui  tfe  ieb4fe.    But  the  patieb  Md  not 


rriai'tfUmmSt^ 


tfi40 


■•*• 


^  !f  H6W.  If  od.  St  TV.  7^. 
t'Sa9W.Mid.St.1V; 


pUtded;  and  therefore  it  is  altogether  in- 
applicable. 

Jfapkr  md  GroUo,  1813.— This  case  is 
of  the  same  nature  with  that  of  Alexan- 
der Campbell.  There  was  no  second  in- 
dictment, and  no  question  about  a  second 
indictment 

Ilomos  SomenUU,  1813.— This  case  is 
so  far  applicable,  that  the  panel  had 
pleaded  to  the  first  indictment ;  that  the 
second  indictment  was  servad  without 
any  previous  desertion  of  the  first';  and 
^at  the  panel  was  tried  and  convicted. 
But  even  with  regard  to  this  case,  it  is  to 
be  observed,  that  ikie  crime  of  which  the 
panel  was  accused  was  that  of  peijory^ 
the  |>unishment  of  which  could  not  ex- 
ceed imprisonment  and  piUory ;  and  that 
the  panel  was  at  a  very  serious  expence 
ill  defending  himself  at  every  diet  of  the 
Court.  It  was  therefore  obviously  better 
for  him  that  the  trid  should  go  on,  what- 
Irver  night  be  the  events  than  that  it 
fhould  bi  flierely  out  off  for  fifteeu  days. 
Accordingly,  the  objection  was  not  staled 
by  his  counsel,  and  oouid  not  l^e  jodged 
of  by  the  Court 

/o^  Euii^  1813.— This  person  was  in- 
dicted for  uttering  and  selling  forged 
n^es;  the  first  of  which  is  a  camtal 
offence*  He  pleaded  not  guilty,  and  in- 
formations were  ordered.  Then  a  new 
indictment  was  served  without  a^y  deser- 
tion; and  a  pleading  on  the  relevancy 
apaih  took  J^ace.  But  the  Ccort  will  ob- 
serve whar  followed.  When  the  new 
indictment  was  ftmnd  f<elevaiii,^Patt^ 
fkmkd  gifUtyT*  to  the  secoMl  dnm,  and 
was  sentenced  to  trantportaiiim.  lA  such 
uoase^  though  the  panel  had  an  interasi 
to  ob^i  to  the  relevancy  of  the  charge 
itself  in  both  indictments,  it  is  evident 
that  it  would  have  been  very  mudi  against 
his  Interest  to  b^^t  to  the  powers  exer. 
dsfd'  by  bis  majesQr's  advocate,  or  to  tha 
regularity  of  his  proceedings. 

Bell  emi  BaufiUy  1817.— Noihiag  can 
be  drawn  ftom  this  case.  Bell  fietded 
malty  h  bath  Macfinsitfs;  and  as  to 
I>oiis^  the  diet  was  dettrted.  It  is 
submitted,  that  ithas  no  analogy  to  tha 
present  questipii* 

These  are  all '  the  cases. selected  \ij  his 
majesty's  advocate,  frd&i  (he  first  uote  of 
{earch,  fr^m  1.777  downwards.  And  it 
IS 'obvious,  that  none  of  ^hein  bave  any 
unalogv  to  the  case,  except  those  of  ilfmtf- 
hqa^aomeivilkf  and^  Bim^  and,  even  at 
"to  uiese^  the  explanations  appearing  on 
the  ho^  of  them  are  quite  su%ient  to 
'  aeeduni  for  ^(ke  o^edion  hot  heh^  ttateds 
whieh,  ifter,  all,-is  the  utmost  thft  can  be 
'drkwuditeifthenK    ' 

The   additional    obtes   mentioir  fitar 


liQtel  Nieokmi,  1711^Ptttel  ifi  this 
c^e  had  notpkmkdn 


d4lJ 


J^  AdmhAdmng  unlawful  Oaths, 


A.  D.  1817. 


[242 


Pafndb  BamltoH,  1714.— Hie  fact  it 
not  diattnctly  stated,  nor  does  it  at  all 
appear  what  beetme  of  tbe  caie.  Tbouffh. 
the  minute  and  interiocutor  fpeak  of  the 
^  new  mdictment  raised/*  this  may,  in 
truth,  refer  meniy  to  the  notice  of  the 
lord  advocate  of  an  intention  to  raise  a 
new  indictment  immediately  thereafter. 
Withoat  seeing  the  dates,  it  is  impossible 
to  draw  an  J  correct  inference.  Besides, 
though  it  is  mentioned  in  a  note  that  in- 
formaiions  had  been  given  in,  it  does  not 
follow  that  the  panel  had  pieaded.  The 
iafcTOiations  might  be  on  the  form  of 
citation,  or  on  other  points  not  necessarily 
implying  that  there  nad  been  a  plea  to  the 
inoictment. 

In  one  view,  however,  this  case  is,  with 
many  others,  a  fiOal  precedent  against  the 
doctrine  maintained  oy  his  majesty's  ad- 
vocate. For  it  will  be  observed,  that  Mr, 
Demean  Torbet  never  thought  of  maintain- 
log,  that,  after  pleading,  the  service  of  a 
new  indictment  ipio  facto  put  an  end  to 
tfie  ftrs^  or  that  it  conld  be  abandoned 
otherwise  than  by  an  express  interlocutor 
of  the  Court. . 

Jbaktm  Femk  and  others,  1720. — This 
ease  is  nearly  on  a  footing  with  the  pre* 
ceding.  It  does  nol  appear  when  the  new  ^ 
indictments  were  raised.  But  it  does  dis- 
tinctly appear  that  his  majesty's  solicitor 
and  adTocale<depute  of  that  time  did  not 
inu^ne,  that  he  had  any  power  to  abandon 
the  first  indictment  otherwise  than  by  a 
motion  to  the  Court;  and  an  express  ii^ 
terlocotor  was  accordingly  pronounced. 

Jama  IfigUs,  1720.*-ranel  had  not 
piaaded. 

This  is  an  analysis  of  the  whole  cases 
founded  on  by  his  majesty's  advoeate. 
And  the  Court  will  now  see,  that  there 
'  are  none  bearing  even  the  appearance  of 
analogy,  etcept  only,  li^,  Hamilton  in 
1714;  2nd,  Eecnie,  kc  in  1720,  the- cir- 
cumstances of  both  of  which  are  impeiv 
fectW  known ;  drd,  Mendham  in  1804,  in 
whiSi  boA  indictments  were  found  irre- 
levant; 4th,  Somerville  in  1818;  and, 
5th,  Horn  in  1813^  who  at  lut  pleaded 
guilty,  and  sot  the  libel  rastrfcted  to  the 
charge  vHudi  only  subjected  him  to  an 
arMtrary  punishment. 

That  it  would  be  for  the  Court  to  judge, 
whether  there  is  any  thing  in  theib  caaes^ 
picked  out  of  the  pra^e  of  more  than  a 
etmary^  to  oyertttsn  the  established  prin- 
ciple of  law^  which  was  explained  .In  iht 
debate,  and  is  laid  down  bj  the  fiist 
authority  on  the  subject,  that  after  a  psiael 
has  pleaided^  the  lord  advocate  h^  no 

Eto  abandon  tiie  indictment,  except 
toess  motioii  to  the  Court ;  and  that 
annot  doit  expnakf^  stilMesscftn 
'  he  doit  mrtaal^,  or  bytsip^iarfm.  '. 

>4My.That,  annexed  hereto,  there  is  the 
whole,  s^aisk of  ibe  recorda  from  the  1st 
VOL.  XXXIU.*  .. 


January  1 777,  downwards ;  and  that  ftom 
that  Hst,  the  Court  will  perceive  a  much 
atronger  practice,  by  which  the  lord  ad- 
vocate finds  it  necessary  to  move  the 
Court  expresdy  to  desert  the  diet,  inti- 
aoatiagai  the  same  time,  tliat  he  intends 
instantly  to  raise  anottier  indictment. 
And  more  particularlv,  there  are  many 
cases  in  which  this  is  done  after  the  panel 
had  pleaded. 

Cummkif  against  LessUe,  1785.— Deser- 
tion after  interlocutor  of  relevancy,  y 

WaUer  Ro$s,  1786.— Had  pleaded  not 
guilty.'  .Diet  deserted  fro  loco  et  tempore. 

Brown  and  MNab,  .1793. — Desertion 
after  interlocutor  of  relevancy,  expressly 
for  the  purpose  of  serving  a  new  libel. 

Charki  Sinclair,*  1794.— Diet  deserted 
after  relevancy  found.' 

Qamn  &tnpton,  1811.-7Diet  deserted 
after  interlocutor  of  relevancy. 

.  These  are  cases  in  which  the  panel  had 
pleaded.  There  are  many  others  in  which 
the  recdrd  bears  a  desertion  pro  loco  et 
tempore,  for  the  purpose  of  immediaUly 
serving  a  new  libd. 

David  Dalgleish,  kc.  1780. 

John  Grant,  1783. 

William  Tenant,  1789. 

Thomas  Wilson,  1790. 
'  Jacob  Tait,  1795. 

O'Neils,  1796. 

UrquharU,  1797. 

Kirby,  1799. 

Richard  Mendham,  1800.—"  Diet  de- 
serted before  pleading,  as  the  advocate 
stated  he  meant  to  serve  a  new  libel  this 
qfternoonJ* 

Clark  and  Brown,  1802. 

Monro  and  M'Farlane,  1809. 

■  ■ 

That  from  this  evidence  of  practice,  to 
which  may  be  added  all  the  cases  in  the 
additional  notes,  it  is  humbly  submitted, 
the  inference  is  irresistible,  that  no  such 
principle  ever  was  recognised  as  that 
maintained  by  his  majesty's  advocate,  that 
by  executing  a  new  indigtm^nt,  a  previous 
indictment  to  which  the  panel  had  pleaded 

J's  ^pso  facto  extinguished.  The  law  has 
leknowledged  no  such  power  in  the  lord 
advoeate^  and  it  is  as  little  sanctioned  by 
any.  practice.  On  the  contrary,  the  uni- 
Ibcm  practice,  with  the  exception  of  a 
few.  straf^liog  instances,  all  since  the 
year  1904,  and  all  but  one  since  the  year 
1812,  is  directly  the  i-everse,  the  lord 
yd^ocate  having  always  thought  it  ne« 
i6cluary  expre^ly  to  move  the  Court  to 
idesert  the  diet. 

•  That  on  the  whole,  it  was  humbly  sub- 
taitted,  that  this  search  into  the  practice 
instead,  of  supporting  the  plea  of  his 
majesty's  advocate,  founded  on  a  mere 
allegation  of  practice,  in  opposition  to 

♦  3  How.  Mod .  St.  Tr.  777. 


243]        57  GEORGE  III. 

the  principle  of  law,  tends  very  strongly 
to  support  the  plea  of  the  panel,  and  to 
shew  trie  incompetency  of  the  proceeding 
here  objected  to:  That  if  there  were 
nothing  more  to  be  stated,  it  wonld  be 
enough,  that  between  the  year  1720  and 
the  year  1804,  there  is  not  one  example  of 
a  second  indictment  raised  after  a  panel 
had  pleaded  to  the  first,  and  before  a  de- 
sertion of  the  diet  by  aathoritjr  of  the 
Court.  The  case  in  1804  has  be«n  ex- 
plained ;  and  it  will  be  for  the  Court  to 
judge,  whether  a  practice,  which -really 
rests  on  one,  or  at  the  utmost  itoo  cases  in 
1813,  can  make  law,  in  opposition  to 
principles  otherwise  clearly  esublished. 


Trial  of  WUUam  Edgar 


L344 


COURT  OF  JUSTICIARY. 

May  26,  1817. 

FreKnt. 

Rt.  Hon.  DaM  Boylty  Lord  Justice  Cleik. 
Lord  Hermand. 
lord  GUlies. 
Lord  PUmiUy. 
hord  Re$ton. 

Cowuelforthe  Crown. 

Rt.  Hon.  Alexander  Maeonockie,  Lord  Advo- 
cate [afterwards  a  lord  of  Session  and  Justi- 
ciary, with  the  title  of  Lord  Meadowbank.] 

James  Wedderbum,  Esq.  Solicitol^eneral. 

H,  Home  Dnmmondy  £sq. 

H,  Warrender^  W.  S.  Agent. 

Coumelfor  WiUiamEtigar. 

John  Clerky  Esq. 
Geo,  Cramtotm,  Esq. ' 
Thot.  Thomtoni  Esq. 
James  Moncrieff",  Esq. 
Francis  Jeffrey,  Esq. 
J.  P.  Grant,  Esq. 
Henry  Coekbum,  Esq. 
J.  A,  Murray,  Esq. 
G.  W,  Boyd,  W,  S.  Agent. 

William  Edgar  was  placed  at  the  bar. 

Lord  Justice  Clerk. — ^Your  lordships  re* 
member  die  obieaion  that  was  stated  in  this 
case.  You  ordered  minutes  to  be  giTen  in  fot 
the  parties,  stating  the  practice  relative  to  the 
objection.  These  are  now  upon  the  table ; 
and  you  are  to  say  how  they  are  to  be  dis- 
posed of. 

[Here  Mr.  Cranstoun*  was  beard  at ,  consi* 
derable  length  in  support  of  the  objections 
to  the  competency  of  the  indictment.] 

Lord  Gillies. — Before  the  prosecutor  begins,. 
I  want  an  explanation  of  a  point.  The  case  of 
Ilaniiltoh  has  been  mentioned,  in  which  Dun- 
can Forbes  was  prosecutor.    That  name  must 

*  No  report  of  this  speech  has  been  pro- 
cured. 


excite  in  vs  xiU  peculiar  attention.  On  page 
5,  of  the.  joint  minute  of  the  parties,  it  is.stated 
by  the  public  prosecutor,  -^'Mr.  Duncan 
Forbes,  his  majesty's  advocate,  consents 'to  the 
deserting  of  the  diet  against  Patrick  Haaulton, 
younger,  of  Green,  upon  this  libel''  (I  under- 
stand informationa  had  been  ordered,  which 
raises  a  presumption  that  that  libel  had  been 
pleaded  to),  **  without  prejudice  to  him  to 
insist  in  the  new  indictment  raised  at  the  in- 
stance of  his  majesty's  advocate  against  him.*' 
What  I  want  to  know  is,  whether  this  new  in- 
dictment raised  was  served  i  In  looidng  at 
the  preceding  case,  **  but  prejudice  to  him  to 
insist  in  his  other  indictment  already  raised 
and  executed,''  the  insertion  of  ^  exeaUed/*  in 
one  case,  and  the  omission  of  it  in  the  other, 
excites  suspicion  that  it  was  not  executed  in 
the  other.  It  is  mentioned  in  the  one,  and  not 
in  the  other. 

Mr.  Drummond. — My  Lord  Justice  Clerk ; 
It  appears  to  me,  that  there  are  two  points  for 
consideration  in  this  case.  The  first  is  one  of 
considerable  importance,  the  other  is  of  no  im- 
portance at  all  as  ofiecting  the  paneL  The 
first  to  which  I  allude,  is,  whether  it  be  com- 
petent, during  the  dependence  of  one  indicts 
ment  to  serve  another.  The  consequence 
would  be  that,  if  this  be  incompetent,  the 
service  of  the  last  indictment  in  the  present 
case  would  be  a  nullity ;  and  the  panel  would 
thus  obtain  a  ftirther  delay,  to  allow  time  for 
serving  it  over  a^n.  The  other  point  ia, 
whether,  after  au  indictment  has  been  pleaded 
to  (to  use  an  expession  which  has  been  more 
dwelt  upon  in  ttie  present  case  than  in  all  the 
former  practice  of  the  Court),  it  can  be  aban- 
doned by  the  prosecutor,  without  an  act  of  the 
Court,  or  whether  it  can  only  be  got  rid  of 
with  the  authority  of  your  lordships,  lliia 
second  point  is  of  no  importance  on  this  occa- 
sion, and  is,  in  truth,  a  mere  question  of  form ; 
for,  whatever  your  finding  should  be,  the  retnlt 
will  be  the  same  to  the  panel  at  the  bar. 

Hie  first  point,  however,  fortunatdy  appears 
to  be  attended  with  no :  difficulty ;  for  it  is 
settled  by  constant  and  inveterate  practice. 
I  shall  not  detain  the  Court  by  repeating  what 
is  stated  in  tKe  printed  minutes,  where  your 
lordships  have  before  you  not. merely  theftve 
cases  to  which  only  the  learned  gentheman  has 
thought  proper  to  allude,  but  a  series  of  other 
cases  of  which  nothing  has  been  aaid.  There 
are,  besides,  the  cases  from  1711  to  1T20,  in 
the  additional  part  ojf  the  minutes,  which  are 
completely  in  point  upon  this  part  of  the  sub- 
ject, proving  tnat  any  given  number  of.  indict 
ments  may  subsist  against  a  pand  at  one  and 
the  same  time.  Even  the  case  of  -colonel 
Chayteris,  of  which  so  much  has  been  sidd  on 
the  bther  side  of  the  bar,  may  be  reforr^  to  in 
support  of  this  doctrine.  As  quoted  ^by  Mr. 
Hume,  it  establishes  a  c(nn|riete  precedent, 
that  it  is  competent  to  raise  at  oacci  and  con- 
sequently to  execute,  a  number  of  libels  against 
an  individual  accusing  him  either  of  the  same, 
or  of  fifty  different  crimes. 


345] 


Jm  AAmnitUring  utilat^iil  Oaths. 


A.  D.  1817. 


[246 


The  only  tvUe  of  law  as  to  the  defence  of  a 
panel,  in  sndi  circomstancea,  to  wbich  onr 
practice  seems  to  pa  j  any  regaid,  and  it  is 
snfiSeient  for  ereiynseiu]  purpose,  is  this,  that 
the  proeecator  must  make  bis  choice,  before 
flQing  to  trial,  as  to  the  indictment*  upon  which 
le  is  to  proceed  against  the  panel.  Bat,  in 
the  present,  of  all  cases,  I  do  not  know  to 
what  usefel  pnrpose  it  can  tend  to  enter  into 
this  discQSsion  at  all ;  for  if,  as  happens  here, 
there  is  one  and  the  same  crime  charged,  and 
the  same  particnlars  are  mentioned,  the  de- 
fence also  will  be  the  same  under  the  different 
libels. 

Besides,  it  will  always  be  remembered,  that, 
l>y  the  Tiew  of  the  law  which  I  maintain,  the 
first  indictment  is  already  extinguished.  For 
either  the  prosecutor  does  virtually  abandon  all 
prerious  indictments,  by  executing  a  subse- 
quent one,  or  the  Court  will,  as  a  matter  of 
coarse,  desert  all  diets  but  that  in  which  he 
desires  to  appear.  And  here  it  is  upon  the 
record  of  the  Court,  that  he  has  abandoned  the 
first  libd;  and  it  remains  for  the  learned 
gentleman  to  show  by  what  proceeding  it  is 
possible  to  keep  the  prosecutor  in  Court  longer 
thao  he  chooser  to  remain.  What  I  state  is 
the  settled  practice  in  a  multitude  •  of  cases, 
which  are  ot  that  description  that  they  cannot 
appear  in  the  books  of  adjournal,  or  form  any 
entry  on  the  record.  When  a  panel  forces  on 
his  trial  by  means  of  the  act  1701,  and  the 
prosecutor  does  not  bring  on  the  trial  on  the 
first  indictment,  but  new  criminal  letters  are 
raised  against  the  panel,  these  letters  must  be 
serred  before  the  expiration  of  the  first  indict- 
ment, otherwise  the  panel  could  not  be  de- 
tained in  prison.  Now,  in  all  the  numerous 
eases  of  this  descriptiou,  it  is  plain  that  two 
libels  are  in  existence  against  the  panel  at 
once,  without  the  diet  ever  being  called,  or 
the  panel  even  brought  into  the  presence  of 
the  Court,  and  no  objection  has  ever  been 
made  to  such  a  proceeding.* 

*  I  was  not  aware  at  this  time,  that  on  one 
occasion  it  had  been  thought  worth  while  to 
state  an  objection  to  this  form  of  proceeding. 
The  circumstance  is  detailed  in  the  following 
note  to  Mr.  Burnet's  work,  page  367  :  ''  But 
is  it  necessanr,  in  point  of  form,  that  the  diet 
he  called  and  simpUcUer  deserted,  as  the  act 
ordains,  in  order  to  entitle  the  prosecutor  to 
the  benefit  of  new  erimmal  letters  r  In  practice 
it  is  not  held  sO ;  and  justly,  for  though  not 
calling  the  diet  be  a  virtual  desertion  of  it  by 
the  prosecutor,  the  prisoner  can  sustain  no 
pitjudice  by  this  form  not  being  gone  through. 
It  being  still  competent  to  recommit  him  on 
new  criminal  letters  being  served.  Accord- 
ingly in  the  case  of  Welsh,  who  had  run  his 
letters,  and  on  that  ground  petitioned  for  libe- 
ration on  the  lape  of  the  first  forty  days,  but 
who  had  by  this  time  been  served  with  new 
criminal  letters.  Lord  Justice  Clerk  (Hope), 
'  on  advising  his  petition^  pronounced  this  inter- 
locutor:  ^28th  October  1806|  having  con- 


In  the  case  of  colonel  Charteris,  quoted  by 
the  learned  geddeman  who  precedea  roe,  the 
discussion  was  not  as  to  the  running  of  the 
tmfticur,  and  the  subsbtence  of  several  indict- 
ments at  once,  as  he  seemed  to  suppose,  for 
that  was  taken  for  granted  to  be  lawful ; 
neither  .was  it  imagined,  that  on  having  pro- 
ceeded to  the  trial  of  one  indictmeat,  all  the 
others  were  not  thereby  extinguished.  like 
question  was,  whether  the  panel  should  not  be 
informed,  before  being  called  on  for  his  de* 
fence,  to  which  of  several  indictments  he  was 
to  answer.  There  was  no  doubt  as  to  the 
competency  of  raising  and  executing  them  all. 
No  person  ever  entertained  a  doubt  upon  that 
subject.  The  demand  made  was,  that  before 
the  trial  the  panel  should  be  informed  on 
which  indictment  the  trial  was  to  proceed ;  it 
not  being  admitted,  or  so  well  understood  as 
now,  that  the  last  service  extinguishes  a  pre- 
vious libel.  It  is  unnecessary  to  say  more 
upon  this  first  point;  for  it  is  settled  by  the 
established  practice  of  die  Court,  that  there • 
may  be  fifty  indictments  subsisting  at  one 
time,  if,  before  the  panel  be  made  to  answer 
or  take  his  trial,  they  be  all  reduced  to  one. 

The  next  question  is  as  to  this  doctrine  of 
pleading  to  an  indictment,  about  which  the 
learned  gentleman  did  not  choose  to  speak  by 
itself,  but  only  in  conjunction  with  the  other 
point,  and  about  which  I  should  have  been 
glad  to  have  beard  what  he  could  say ;  for  I 
have  not  yet  obtained  the  remotest  glimpse  of 
what  the  idea  of  **  joining  issue,''  as  applicable 
to  the  case  before  the  Court  can  rest  upon. 
The  form  of  interrogating  the  panel,  as  to  his 
guilt  or  innocence,  before  naming  the  jury,  is 
one  of  the  most  immaterial,  I  might  almost 
venture  to  say,  useless  steps  of  the  whole  pro* 
ces&.    In  England,  a  panel  confessing  may  be 

sidered  the  foregoing  petition,  with  the 
letters  of  ihtimation  and  execution  herewith 
produced,  in  respect  that  new  criminal  letters 
have  been  raised  and  executed  against  the  pe- 
titioner, and  have  been  laid  before  hb  lord- 
ship, along  with  the  petition  for  his  majesty's 
advocate,  for  a  warrant  to  detain  the  petitioner 
in  prison ;  refoses  the  desire  of  this  petition, 
in  so  far  as  it  prays  to  set  the  petitioner  at 
liberty ;  reserving  to  the  petitioner  the  benefit 
of  any  argument  he  may  oe  advised  to  found 
on  against  being  subjected  to  a  new  trial,  in 
consequence  of  the  diet  not  having  been  de- 
serted timpUcUer  on  the  27th  current,  as  he 
alleges  it  ought  to  have  been,  under  the 
act  1701.' 

^*  Accordingly  wlien  the  trial  came  on,  on 
21st  November  following,  the  prisoner  founded 
tn/er  alia  upon  the  circumstance  of  the  diet  not 
having  been  deserted  simpUciter  when  the  diet 
of  the  former  libel  fell ;  but  the  Court  held 
there  was  no  necessity  for  an  interlocutor  to 
that  effect,  the  non-appearance  of  the  prose- 
cutor being  a  vtrtual  desertion  of  the  diet,  and 
entitling  him  to  serve  new  criminal  letteiS|  in 
terms  of  th$  5tatute."-^H.  H.  D. 


247] 


57  GEORGE  Ul. 


Trial  of  U^illiam  Edgar 


{fi48 


convicted  and  punished  by  the  Court  without  i 
the  intervention  of  a  jury;  and,  if  he  remain 
silent,  he  may,  in  certain  cases,  I  believe,  be 
presumed  guilty;  and,  in  others,  till  very 
lately  might  have  been  punished  by  a  barbarous 
sort  6f  death.*  Now,  in  all  this,  our  praotiee 
is  essentially  different.  The  Court  are  no  more 
judges  of  the  fact,  in  a  case  of  confession,  than 
where  the  proof  rests  npon  an^  other  species 
of  evidence ;  and  silence  is,  in  all  cases  hor 
inanely  interpreted  into  a  plea  of  not  guilty, 
the  prosecutor  being  bound  to  prove  his  charge 
unless  expressly  admitted  by  the  accused  in 
presence  of  a  sworn  assize, 

I  have  looked  through  our  law  books,  and, 
from  the  beginning  to  the  end  of  all  the  au- 
thorities of  the  law  of  Scotland,  there  is  not  a 
word  of  the  doctrine  of  litiscontestation  to  be 
found  in  criminal  proceedings.  There  is  no 
such  word  used  Ij.''^  George  M'Kenzie,  nor 
by  Mr.  Hume.  There  is  nothing  in  Dractice, 
or  in  principle^  to  give  it  support,  and  the  in- 
troduction of  It  is  contrary  to  the  first  princi- 
Sles  of  our  criminal  law.  Upon  what  does  the 
octrine  of  litiscontestation  rest?  Upon  an 
implied  bargain  or  presumed  judicial  contract 
between 'the  liti^nts.  But,  is  that  a  doctrine 
which  can  be  introduced  here?  Can  a  man 
make  a  lawful  paction  oonceming  his  life  or 
his  liberty?  Litiscontestation  has  no  sense  or 
meaning  in  this  place.  I  have  not  been  able 
to  find  the  word,  even  in  a  pleading,  except  in 
one  case  reported  by  M'Laurin ;  and  I  wbb 
the  doctrine  for  ever  expelled  from  the  de» 
liberations  of  this  Court. 

No  party  has  at  present  9.ju$guaUum  in  any 
thing.  To  what  could  the  panel  here  acquire 
a  right?  To  his  own  plea?  certainly  not. 
Of  what  benefit  could  that  be  to  him  t  If  he 
plead  guilty,  it  may  to  the  prosecutor;  if  not 
guilty,  is  that  of  any  use  to  himself?  Is  it  to 
any  act  of  the  Court  he  has  acquired  a  right? 
There  is  no  act  of  Court  in  this  instance..  If 
there  had  been  an  inteiiooutor  of  relevancy,  I 
should  at  least  have  understood  the  aigument, 
but  we  have  not  yet  advanced  so  far.  This  is 
the  only  ground  on  which  I  could  conceive  the 
•argument  of  the  panel  to  have  any  semblance 
of  reason.  But,  unfortunately  for  the  panel, 
in  the  case  I  have  alluded  to  in  M*Laurin*s  re- 
ports as  being  the  only  place  in  which  mention 
IS  made  of  litiscontestation,  there  was  an  in- 
terlocutor of  relevancy,  and  yet  no  regard  was 
paid  to  the  argument  by  the  Court.  The  case 
IS  that  of  James  Archibald,  in  February  1768. 
The  petition  in  support  of  which  the  ide^  of 
litiscontestation  among  other  arguments  was 
there  advanced,  was,  that  the  Court  could  not 
desert  a  diet,  pro  loco  ei  tempore  idlber  an  inter- 
locutor of  relevancy ;  but  the  Court  deserted 
the  diet  in  terms  of  tlie  prosecutor's  motion, 
and  granted  vrarrant  for  recommitting  the 
panel. 

I  have  to  submit  that  the  same  consequence 
must  follow  to  the  panel,  whether  you  are  of 

*  i  Stark.  Crim.  Plead.  340. 


opinion  that  the  libel  is  abandoned,  or  whether . 
you  to  tlirough  the  form  of  declaring  it  de- 
serted. The  Court  cannot  acquit  the  panel  of 
thechar^  against  him.  Your  lordships  are 
not  the  judges  of  the  fact  AU  you  can  do  is 
to  declare  the  diet  deserted ;  and  the  conse^ 

Suence  to  the  pauel  is  the  same,  for  he  may  be 
etained  in  prison  and  indicted  again  next  day 
for  the  same  offence.  To  constitute  the  Court 
judges  in  a  previous  question  as  to  the  pro- 
priety of  the  prosecutor's  conduct  in  insistins 
m,  or  abandoning  the  libel,  would  be  attendea 
with  the  most  extraordinary  consequences,  for 
whidi  it  cannot  be  supposed  that  the  panel's 
counsel  are  prepared  to  argue.  It  would  in-- 
troduce  a  course  of  procedure  hitherto  un- 
known, which,  if  it  bad  been  introduced  in 
other  tiroes,  might  have  led  to  the  superseding 
of  the  jury  altogether,  and  which  must  in  any 
times  invest  the  Court  with  the  office  of  the 
prosecutor. 

It  was  said  that  the  Court  has  a  discretioa 
to  exercise  in  deserting  the  diet;  that  it  may 
do  it  simpliciier^  as  well  as  pro  loco  et  tempore^ 
if  good  grounds  be  shown ;  and  that  the  power 
<^  abandoning  the  indictment  contended  for 
takes  this  discretioa  from  the  Court.  Mr. 
Bumet,*  contrary  to  this  statement,  howwer, 
savs  that  the  prosecutor  is  not  bound  to  show 
why  be  moves  for  the  desertion  of  a  diet  pro 
loco  et  tempore^  and  thai  the  Court  must  grant 
any  motion  which  he  makes  to  that  effect.  But 
I  am  quite  willing  to  admit  that  Mr.  Bnmet 
has  stated  this  doctrine  somewhat  too  broadly^ 
and  that  he  has  quoted  in  too  unqualified  a 
manner  (as  he  not  unfrequently  does),  the  im- 
port of  a  decision  to  which  he  refers  in  the 
note  in  its  sup^rt.  I  perfectly  coincide  with 
Mr.  Hume's  view  of  the  subject,  that  thou^^ 
the  prosecutor  cannot  be  compelled  to  discloae 
his  reasons  for  his  motion  to  desert  pro  loco  el 
temporcy  the  Court  have  a  discretion  which,  if 
an  extreme  case  be  made  out,  they  may  exer* 
cise  by  deserting  the  diet  simpUciter  ;\  thou^  n 
more  difficult  question  remains  behind,  to  dis- 
cover what  benefit  the  panel  can  possibly  de- 
rive from  that  proceeding.  All  this,  however, 
relates  to  the  case  of  the  prosecutor  moving 
for  a  desertion  pro  kco  et  tempore^  whereas 
here  he  has  made  no  such  motion. 

I  am  not  contending  for  a  povrer  inherent 
in  the  public  prosecutor,  without  a  remedy  for 
any  evil  that  may  follow  from  it.  All  I  say  is, 
that  the  panel  is  already  out  of  Court  as  for 
as  the  first  libel  is  concerned,  and  that  he  has 
nothing  more  to  ask  for  by  desertion  of  the  diet 
of  that  libel  than  what  has  happened  by  its 
abandonment  by  the  public  prosecutor.  Where 
then,  it  may  be  askea,  is  the  remedy  in  a  case 
.  of  oppression  ?  The  answer  Is,  that  by  serving 
a  multiplicity  of  libels  and  successively  aban- 
doiung  them  all,  the  circamstances  of  oppres- 
sion may  be  stated  to  the  Court,  if  there  be 
any  to  complain  o^  when,  by  insisting  on  a 
new  indictment  the  panel  shall  at  length  be 


•  Page  310, 


t  Supplemonli  237. 


3491 


Jbr  AdminitUring  untawfid  Oaika 


A.  D.  18lt 


BHMr 


called  opon  to  answer  at  llie  bar ;  or  the  panel 
may  have  liis  grieTances  previously  discussed 
by  presenting  a  petition*  But  it  will  always 
be  reaembrnd,  that  it  is  his  own  fitult,  by 
neglecting  the  remedies  of  the  act  1701y  if  his 
imprisonment  shall  in  the  meantime  be  pro- 
longed a  single  day.  And  it  is  not  easy^  there- 
lore,  to  conceiTe  m  more  harmless  application 
that  can  be  made  to  a  prisoner  than  tne  service 
of  a  series  of  indictments,  whether  relevant  or 
not,  that  are  never  insisted  in,  or  to  imagine 
bow  any  evil  or  oppression  can  arise  from  such 
a  proceeding. 

in  the  present  instance,  and  in  the  present 
BiMft  of  me  business,  there  is  clearly  no  case 
before  the  Court  from  which  the  panel  has  to 
ask  rdiei^  or  of  which  he  can  complain,  or  on 
which  be  can  be  heard  at  alL  The  learned 
counsel  for  the  panel  are  entitled  to  come  for- 
vraid  and  state  their  hardships,  if  any  shall 
occur  to  their  fertile  fancy,  and  they  will  be  in 
order  in  doing  so,  when  the  panel  shall  be 
broQght  again  to  the  bar,  and  the  prosecutor 
shall  insist  in  a  charge  against  him.  It  will 
then  be  for  the  Court  to  consider,  whether  a 
case  is  made  out  that  calls  upon  Uiem  to  desert 
the  diet  sinrpKciiter,  rather  than  pro  loco  et  tern- 

C\ ;  and,  after  all,  if  your  lordships  should 
e  recourse  to  this  unusual  proceeding,  I  am 
yet  to  learn  what  be  lefits  it  would  confer  upon 
a  prisoner  more  than  the  ordinary  species  of 
desertion  pro  loco  et  tempore^  if  obtained  with- 
out the  consent  of  the  prosecutor.  On  a  point 
on  whidi  Mr.  Hume  has  spoken  with  so  nrach 
caution  and  reserve,  it  does  not  become  me  to 
say  any  thing.  For  every  evil  there  must  be  a 
remedy;  and,  for  all  injustice  there  must  be 
redress  in  the  common  law  powers  of  this  su- 
preme court;  but  the  question  is,  whether  the 
provisions  of  the  act  1701  are  not  intended  to 
meet  every  case  that  can  occur,  and  whether  a 
case  can  possibly  occur,  in  which  the  Court 
would  be  justified  in  adding  or  attempting  to 
add,  to  the  safeguards  of  that  law. 

^e  have  heard  that  Mr.  Hume's  authority  is 
against  us  in  this  part  of  the  case,  and  that  is 
an  authority  to  which  we  are  all  disposed  to  bow. 
But  I  must  confess,  that  I  have  not  been  able 
to  discover  in  any  part  of  that  learned  author's 
work,  such  a  meaning  as  has  been  imputed  to 
bim.  I  admit  the  justice  of  all  the  remarks 
that  have  been  quoted.  But  your  lordships  will 
observe  how  Mr.  Hume  was  quoted.  There  was 
nothing  referred  to  as  to  his  opinions  of  the 
prosecutor's  power  of  passing  from,  or  aban- 
doning his  own  instance;  but  passages  were 
quoted  from  diflerent  parts  of  tne  b<K>k  as  to 
Ibe  desertion  of  the  diet.  I  must,  however, 
beg  your  attention  to  those  passages  in  Mr, 
Hume's  woriL  where  he  speaks  of  the  prosec^ 
tor's  power  to  abandon  hu  instance ;  thus,  he 
^ys,*  ^  at  any  period  before  remitting  an  in- 
dictment to  an  assize,  the  prosecutor  may 
abandon  a  faulty  libel,  and  raise  another  in  a 
more  correct  and  better  form."    I  am  aware 


•  Vol.  3,  p.  30C. 


»    «      •  . 


that  dkis  is  not  an  authority  directly  In  point, 
as  the  author  is  there  only  speaking  inci* 
dentally  on  this  subject,  and  we  have  seen  how 
easv  a  matter  it  is  to  take  detached  passages 
without  reference  to  the  context  and  general 
bearing  of  the  author's  meaning,  in  order  to 
support  a  particular  purpose.  Let  us  then  see 
what  Mr.  faume  says  vrMu  treating  ezpresriy 
of  the  prosecuto/s  iiistance.  ^'  ^  the  Lord 
Advocate's  instance  is  thus  in  one  sense  inde- 
pendent of  the  party  injured ;  so  it  is  also  in' 
this  other  sense,  that  it  is  entirely  under  hie 
own  management  and  disposal  as  to  the  sea^ 
sons  and  occasions  when,  or  the  mode  wherein, 
or  the  effect  to  which  it  shall  be  used.  For  in 
none  of  these  points  can  any  individual,  nor 
even  the  supreme  court,  pretend  to  any  con- 
troul  or  superintendence  of  him;  as  indeed,'^ 
marie  the  conclusion,  ^  as  indeed  to  allow  any 
such  interference  on  their  part,  would  in  sub-' 
stance  be  to  make  the  judges  prosecutors^  who 
ought  to  be  kept  free  as  &r  as  possible  of  all 
previous  impressions  of  the  case."* 

I  submit,  that  if  these  passages  be  oomparecl 
wiUi  those  quoted  on  the  other  side,  whin  last 
rdate  entirely  lo  the  desertion  of  the  diet,  and 
do  not  contain  a  word  about  the  proseoitor's 
power  over  his  instance,  there  wiu  be  no  dis-' 
crepancy  or  contrariety  found  between  them. 
Deiertion  of  the  diet  is  an  act  of  the  Court  Y 
but  as  to  the  instance,  the  prosecutor  has  that 
entirely  in  his  own  hands.  Your  lordshipe 
cannot  keep  the  prosecutor  in  Court  a  minute 
longer  than  he  chooses ;  and  the  panel  cannot 
prevent  him  from  withdrawing,  mr  he  has  all 
the  bene6t  from  that  proceeding  which  he  can 
derive  from  any  desertion,  and  receives  no 
harm  from  it 

As  to  the  MiKie  of  15  dajrsy  if  it  be  compe- 
tent and  proper  to  serve  one  indictment  dunng 
the  currency  of  a  previous  one,  that  question 
is  at  an  end.  The  mimim  of  the  second  must 
run  from  the  date  of  the  service^  else  the  power 
to  serve  the  second  would  have  no  meaning 
whatever;  and  accordinglv  this  will  be  found, 
on  inquiry,  to  be  agreeable  to  the  praotioflKi 
Your  lordships  will  remember  the  ongin  and. 
nature  of  the  iMftiM  of  citation,  for  an  ettenp- 
sion  of  which  the  panel  is  not  attempting  to 
plead  any  equitable  claim.  The  vJme  aie 
not  founded  upon  statute  but  upon  an  equitii 
able  practice.  No  case  is  here  made  out  in 
equity  for  a  delay;  and  it  certainly  will  not 
be  said  that  there  is  any  practice  against  the 
running  of  the  second  tndMnc  before  the  deses- 
tion  of  the  previous  diets.  If  it  be  competent 
to  serve  three  or  four  indictments  at  once,  it 
must  follow  that  the  Mmm  of  the  whole  wmif 
run  at  the  same  time.  But  at  all  tiiase,.befoie 
a  trial  is  brought  on,  the  Court  wR  grant  sooh 
delay  ka  may  appear  proper  in  the  drcum- 
stances  of  ^ny  particufaff  case. 

'  A  complaint  has  been  made  that  the  panil 
has  been  embarrassed  with  diffarent  hbelipin 
preparing  bis  defence.  To  this  it  is  a  svflkient 


4^ 


«  Pag^  215. 


sftU 


57  GEORGE  HI. 


Tri4d  of  fViUiam  Edgar 


i:362 


answev,  that  he  may  establish  this  fact  of  em- 
hamuBsmenty  if  he  cany  as  the  grounds  of  a 
iBOtion  for  delay  (which  appears  to  be  consi- 
dered a  great  advantage  to  the  panel,  and  is 
in  fact  the  real  object  of  this  discussion)  sup^ 
poaiag  him  to  succeed  in  persuading  your 
lordships  ibaX  the  first  libel  is  not  abandoned. 
But  I  nave  already  said  that  there  is  no  room 
here  for  any  statement  of  hardship ;  the  se« 
cood  indictroept  being  the  same  as  the  first, 
with  the  omission  of  two  or  three  lines.  This 
<l^jection,  if  it  existed  at  all,  would  apply  with 
tenfold  force  to  the  common  case  of  au  alter- 
i^tive  charge  of  two  crimes  in  tlie  same  libel, 
or  to  the  ease  of  a  panel  served  with  several 
Ub^s  for  as  many  different  offences,  when  he 
would  have  ten  times  more  difficulty  in  the 
preparation  of  his  defence  ;  and  yet  it  could 
w>t  be  pleaded  to  be  incompetent  to  make 
such  a  cnaige,  or  to  serve  different  libels  at 
once  for  different  offences.  This  very  year  an 
ipataiice  occurred  where  the  same  individual, 
John  Campbell,  was  tried  on  two  separate 
Ubels  on  two  consecutive  days^  and  convicted 
OB  both. 

LordJtMice  derk,-—!  tried  a  man  on  two 
different  libels  upon  the  same  day  last  circuit. 

Mr.  Drtmimond. — ^It  was  observed,  that  in 
ibe  prooeedings  of  the  Court  of  Justiciary  in 
points  of  form,  many  cases  have  occurred  un- 
worthy of  being  followed  as  precedents,  and 
namv  examples  of  loose  and  irregular  practice. 
My  lord,  I  cannot  allow  this  to  pass  uncon- 
iradicted.  I  have  never  had  occasion  to  make 
•fiieh  a  remark  myself,  or  to  hear  it  made  by 
oUiers :  'On  the  contrary,  I  have  always  looked 
up  to  the  practice  of  this  Court,  as  a  model  of 
aceuracy  and  correctness  in  points  of  form.  If 
the  learned  gentleman  go  back  to  bad  times,  he 
nay  find  some  things  not  to  be  imitated,  but  not 
certainly  in  modem  times  when  the  practice 
of  the  Court  has  become  more  mature  and 
perfect. 

I  cannot  sit  down  without  ofierins  a  few  re- 
anarks  upon  the  cases  stated  in  £e  printed 
minute  for  the  panel.  It  is  said,  in  the  second 
page,  ^  Tliat  a  search  from  the  year  1777 
idownwaxda  bad  first  been  made,  and  the  result 
iiad  been  communicated  to  the  panels  some 
4ays  ago :  But  that  after  this  a  search  had  It 
«eema  been  made,  which  appears  to  go  back 
to  the  beginning  of.  the  last  century ;  and  the 
«Catement  of  the  oases  so  found  was  only  com- 
aiuaicated  kte  oa  this  day.  That  on  the  part 
"^if  the  panel  itijaay  now  be  assumed,  that  the 
Court  W  before  it  every,  one  example  which 
liis  majesty's. advocate  has  been  able  to  dis- 
•eorer,,  ia  the.course  of  more  than  a  century ^  of 
any.  proceedings  which  be  thinks  calculated  to 
>a«pport  the  measure  which  has  been  adopted 
in  this  case,  or  .to  meet  the  objectioq  founded 
on  the  cleai^st  principles  of  law.''  This  is  a 
▼ery  erroneoos  statement  of  what  has  been 
dene  in  point  of  fact.  Our  search  began  in 
-t777f  Hmd  prior  to  that  there  Jvas  lui  aeaich 
at  all.    The  cases,  stated  before  ao^  not  the 


result  of  a  search ;  and  the  panel's  counsel 
are  not  entitled  to  say  that  no  other  cases  can 
previously  be  found,  for  the  only  search  made 
was  since  1777. 

Upon  the  case  of  Mendham,  it  is  observed, 
that  **  in  that  case  the  panel  had  cleariy  no 
interest  to  make  the  objection,  but  quite  the 
reverse.*'  I  do  not  think  that  the  circumstance 
of  a  panel  having  no  interest  to  state  an  objec- 
tion is  at  all  a  sufficient  reason  to  exclude  a 
case  from  being  quoted  as  a  precedent,  as 
seems  to  be  assumed.  It  is  the  duty  and  the 
practice  of  the  Court  to  look  to  the  correct- 
ness of  the  proceedings  at  trials,  whether  ob- 
jections be  made  or  not :  A  strong  example  of 
which  lately  occurred  in  the  case  of  Bell  and 
Douglas,  where,  though  the  guilt  charged  was 
acknowledged,  the  indictment  was  not  allowed 
by  the  Court  to  go  to  an  assize.  Similar 
examples  of  the  discharge  of  this  duty  by  the 
Court  must  be  familiar  to  us  all. 

It  is  said,  however,  that  in  this  case  of 
Mendham,  the  panel  had  no  interest  to  state 
the  objection.  But,  we  must  not  look  to  the 
result  in  judging  of  this  interest,  but  to  the 
circumstances  in  which  he  stood  at  the  time 
for  making  the  objection.  How  could  he  know 
at  that  time  the  result  of  the  obiection  to  the 
relevancy  ?  and  until  the  Court  determined  as 
to  that,  It  was  impossible  that  he  could  know 
whether  it  was  his  interest  to  make  this  ob- 
jection. 

If  you  turn  the  page,  your  lordships  wilt 
find  a  complete  shifting  of  the  argument  of 
interest,  for,  in  the  case  of  Somerville,  it  is 
there  maintained  that  the  panel  had  no  interest 
to  state  the  objection  in  question,  although  he 
was  found  guilty  and  convicted.  He  had  an 
interest,  it  would  appear,  to  state  objections  to 
the  relevancy  of  the  libel ;  for  this  was  done 
by  some  pf  me  learned  gentlemen  on  the  other 
side  of  the  bar  who  defended  him ;  and  in 
consequence  of  the  objections  so  stated,  the 
indictment  was  abandoned,  and  a  second  in- 
dictment was  brought*  He  had,  however,  no 
interest,  according  to  the  view  of  the  case  in 
the  minute  for  the  panel,  to  object  to  the  trial 
and  punishment,  became  the  latter  <'  could  not 
exceed  imprisoiimeni  and  pillory,^  Those  re- 
sults are  not  in  general  so  coolly  anticipated ; 
but  where  did  the  learned  gentleman  who 
wrote  this  minute  find  the  law,  that  this  is  the 
utmost  extent  of  the  punishment  of  perjury  ? 
and  how  did  he  lose  sight  of  the  fact  ih  that 
particular  case,  that  the  panel  was  over  and 
above  condemned  to  what  was  perhaps  to  him 
a  still  severer  fate,  to  pay  ^150  of  damages, 
and  the  whole  expenses  of  process?  As  to 
the  expense,  he  had  only  the  ordinary  allow- 
ance bt  two,  or  at  most  three,  counsel.  Here 
there  are  a  great  many  more.  I  do  not  pre- 
tend to  enter  into  tlie  secrets  of  the  giher  side 
of  the  bar,  but  appearances,  at  least,  are 
against  the  panel  on  this  ground.  The  trial 
again,  it  is  said,  could  be  merely  put  off  for 
1^  dayei4  Now,  is  not  this  all  the  panel  asks 
for  in  the  preaeat  case  f  and  yet  we  are  told 


2531 


Jor  Adtrinistering  unUn^  Oatht, 


A.  D.  1817. 


I3ff4 


that  was  the  reason  (he  panel  had  no  interest 
to  plead  the  objection  in  the  case  of  Somer- 
Tille ;  and  on  that  occasion  it  was  said  to  be 
as  well  to  beconvicted  now  as  15  days  hence 
though  in  thik  case  the  very  idea  of  such  a 
doctrine  is  reprobated  as  quite  untenable  and 
preposterous. 

With  regard  to  the  case  of  Alexander  Camp- 
bell, it  is  saidy  "  This  is  not  a  case  applicable 
to  the  point  at  all.  There  was  no  question 
about  any  new  indictment,  and  the  circum* 
stance  of  the  public  prosecutor  passing  from 
particular  charges  in  an  indictment,  intending 
or  reserring  the  power  afterwards  to  raise  a 
new  indictment,  is  wholly  immaterial  to  tbe 
question."  I  conceiye  nothing  can  be  more 
iu  point  than  this.  What  is  law  as  to  one 
charge  in  an  indictment,  must  be  law  as  to  the 
whole.  My  statement,  I  observe,  excites  ridi- 
cule— ^but  let  it  be  answered.  I  repeat,  that 
whatever  proceeding  is  competent  for  the  pro- 
secutor as  to  one  charge  in  an  indictment, 
ninst  be  competent  as  to  the  whole  charges ; 
and  that  whatever  he  can  do  as  to  one  of 
several  diarges,  he  can  do  as  to  one  charge 
standing  alone.  It  will  be  observed,  too,  that 
this  proceeding  took  place  in  the  case  of 
Campbell  after  the  panel  had  pleaded  not 
guilty,  though  that  certainly  does  not  appear 
to  me  a  matter  of  so  much  importance,  as  it 
cannot  £ul  to  appear  to  the  learned  gentle- 
men opposite  from  their  views  of  this  point 
of  form. 

It  is  not  disputed  that  the  prosecntor  may 
afterwards  bring  another  indictment  on  a 
charge  so  abandoned. 

It  is  next  said,  with  the  customary  inaccu- 
racy, ^  But  at  any  rate  it  is  humbly  appre- 
hended, that  even  this  takes  place  only  with 
the  consent  of  the  Court,  which  is  expressed 

Sf  the  terms  of  the  interlocutor  of  relevancy  .*' 
ow,  there  was  no  consent  of  the  Court,  and 
there  neither  was  nor  could  be  any  mention  of 
it  in  the  interlocutor  of  relevancy.  The  inter- 
locator  finds  the  relevancy  of  the  libel  as 
resiricUtL  Tbe  Court  did  not  desert  any  diet, 
and  could  do  nothing  but  proceed  to  the  con- 
sideration of  what  remained  after  the  prose- 
cntor had  withdrawn  one  of  the  charges. 

Then  comes  the  case  of  John  Horn,  who  is 
also  said  to  have  had  no  interest  to  make  this 
ol>|ection«  He  had  an  interest,  however,  to 
ol]gect  to  the  relevancy  of  both  indicfments : 
At  least,  a  learned  gentleman,  Mr.  Jeffrey,'' 
most  have  thought  so,  who  was  his  counsel, 
and  made  the  ejection.  Now  I  cannot  see 
how  he  had  an  interest  in  the  one  and  not  in 
tbe  otber^  delay  being  the  object,  and  the  only 
consequence,  of  stating  either  the  objection  to 
tbe  service  or  the  objection  to  the  relevancy. 
Id  fkn.  pase  of  Horn  there  were  two  charges, 
uttering  and  selliog  forged'  notes;  both  of 
which  were  ultimately  £und  relevant,  Tbe 
panel  did  not  know  till  after  the  interlocutor 
cfi  relevancy  that  the  prosecutor  had  a^y  in- 
tention not  to  insist  on  the  first,  which  was  a 
capital  charge. 


liie  case  of  Bell  and  Douglas  we  are  tolA 
has  no  analogy  to  the  present  question,  because 
^*BeU  pleaded  gidUy  to  both  vuUctmenii  ;  and  as 
to  Douglas,  the  diet  was  deserted.'*  But  that 
cannot  remove  the  case  as  a  precedent,  for 'the 
panel  certainly  had  an  interest  to  state  the  ob^i 
jection  if  he  bad  thought  fit  to  do  so ;  nay,  he 
had  a  more  than  ordinary  interest,  having  his 
confession  of  the  first  indictment  standing  on 
the  record,  whatever  the  prejudicial  efllsct  ctf 
that  circumstance  may  be  to  a  panel.  This 
induciA  of  the  two  libels  are  proved  in  th& 
case  to  have  run  at  once. 

With  regard  to  the  case  of  Hamilton,  it  is 
said  that  there  may  have  been  only  an  intention 
to  raise  a  new  indictment,  notwithstanding 
mention  is  made  of  the  ''new  indictment 
rmteiJ'  That  will  not  do.  It  is  impossiUe 
to  construe  an  indictment  actually  raised  into 
an  intention  to  raise  an  indictment  The  re- 
mark, that  thd  informations  ''  might  have  bean 
on  the  form  of  citation,  or  on  other  points  not 
necessarily  implying  that  there  had  been  a 
plea  to  the  indictment,''  is  quite  unfounded  in 
tact.  Before  the  Jurisdiction  Act  of  George 
II.*.  informations  were  given  in  in  eveiy  c^e, 
that  being  a  form  which  could  not  be  dis- 
pensed with.  Those  informations  contained 
tbe  statement  of  foots  ux>on  which  the  panel 
chose  to  rest  his  plea  of  not  guilty,  as  well  as 
the  objections  that  occurred  to  him  in  point  of 
law  to  the  relevancy.  In  place  of  this  cum* 
brous  proceeding,  which  had  become  a  grie- 
vance and  an  obstruction  to  the  course  of 
justice,  that  excellent  law  substituted  the 
written  defences,  which,  by  a  slovenly  practice, 
are  often  neglected  to  be  lodged,  though  they 
are  in  fact  one  of  the  most  important  steps  of 
the  whole  process,  and  might,  perhaps,  super- 
sede altogether  the  unmeaning  and  embarras- 
ing  ceremony  of  entering  a  plea  before  the 
Court,  which  may  be  immediately  afterwards 
retracted  when  the  Jury  are  sworn.  The  in- 
formations were  in  fact  at  that  period  not 
merely  pleadings  on  the  relevancy,  but  also 
defences,  or  explailations  of  the  plea  of  not 
guilty ;  and  it  is,  therefore,  most  erroneous  to 
say,  that  though  informations  had  been  given 
in,  it  does  not  follow  that  ''the  panel  Aocf 
pleaded:^ 

As  to  the  case  of  Feroie,  the  minute  stated, 
''  that  it  does  not  appear  when  the  new  indict- 
ments were  raised.''  But  your  lordships  will 
see  in  the  prosecutor's  minute,  page  6,.  that  it 
was  the  very  same  date  upon  which  both  libels 
were  called,  consequently  they  must  have  been 
both  previously  raised,  and  must^have  sub- 
sisted together;  and  the  MuddB  of  the  last 
must  have  run  notwithstanding  the  existence 
of  the  first,  which  is  all  that  is  contended  for. 
The  word  "  raised "  in  this  place  plainly  in- 
cludes and  implies  "  executed,  for  tbe  diet  of 
compearance  could  not  have  arrived  unless 
this  had  been  the  case.  That  the  lord  advo- 
cate, therefore,  has  not  power  to  proceed  as  he 
■  — >__^ " 

•  •  Stat;  20  G.  2,  c.  48. 


9561 


ffl  OEOROE  Uh 


TryUqfWUUamEdgQf 


(356 


liM  doM  on  this  occasioDy  is  %  oonclntion 
whioli  cannot  be  diawn  from  this,  any  mote 
Chan  from  the  other  oases  that  have  been  men- 
tioned ;  and  tbeie  is  no  authority  whatever  for 
the  statement,  that  **  it  was  not  imasined  at 
that  time  that  he  had  any  power  to  abandon 
an  indictment  otherwise  than  by  motion  to  the 
Court.'' 

The  other  cases  in  the  minute  for  the  panel 
«ra  not  in  point ;  but  they  serre  to  shew  the 
practioSy  that  diets  may  be  deserted  pro  loco  et 
iempote  even  after  interlocutors  of  relevancy. 

Lord'AAfocate, — ^It  is  unnecessaryi  and  it 
would  be  doing  little  justice  to  the  argument, 
if  1  added  one  word  to  what  has  been  stated. 

Mr.  DruimmmtU — ^I  omitted  to  observe,  that 
the  case  of  M^Renxie,  which  Mr.  Cranstoun 
tjnoted  from  Mr.  Hume,  vol.  iiL  page  10.  seems 
to  have  been  quite  misonderstOKod.  It  ob- 
viously relates  to  a  perfiMtly  different  question 
from  any  thing  now  before  the  Court.  There 
the  prosecutor  moved  the  Court  to  desert  the 
diet  in  absence  of  the  panel,  contrary  to  the 
great  leading  principle,  that  no  oroceeding  can 
•take  place  ra  absence  except  nigitation ;  and 
the  Couft  continued  the  diet  (as  fugitation 
was  not  moved  for),  till  the  panel  should  have 
tin  opportunity  of  showing  why  he  did  not 
tittend. 

Mr.  Ckrk. — ^I  am  sorry  it  has  fallen  to  me 
lo  answer  the  other  side,  for  Mr.  Cranstoun 
bad  an  opportunity  of  considering  the  case : 
I  had  not.  I  have  but  a  general  recollection 
of  what  passed  last  day.  But  I  shall  submit 
a  lew  observations  upon  what  has  been  stated 
by  Mr.  Home  Drummond. 

If  your  lordships  think  that  the  practice  is  of 
considerable  importance  on  this  point,  I  shall 
begin  with  offering  some  remarks  upon  the 
precedents  which  luive  been  cited.    Your  lord- 

.  ships  have  heard  quoted  a  great  many  instances 
in  which  the  public  prosecutor  thought  it  in- 
cumbent on  him  to  get  quit  of  one  indictment 
before  he  directed  another  to  be  served.  You 
have  a  great  number  of  instances  of  this  prac- 
tice by  the  most  learned  persons  who  have 
filled  the  situation  of  his  majesty's  advocate ; 
and  it  seems  to  be  the  natural  and  necessary 
consequence  of  th^e  opinions  which  your 

'  lordidups  have  firom  Mr.  Hume  in  several 
different  passages  of  his  woik.  I  shall  refer 
your  lordships  to  that  practice.  It  is  one 
which  has  been  discovered  in  consequence  of 
a  very  anxious  search  into  the  records  for  more 
than  a  century.     We  have  been  told  by  Mr. . 

.  Home  Drummond  that  there  has  been  no  re« 
gular  search  into  the  records  of  Justiciary.  I 
understood  that  these  records  had  been  very 

'  anxiously  searched;  and,  whether  so  or  not, 
I  am  entitled  to  assume  that  neither  party 
can .  suppose  there  are  anjr  other  instances 
in  the  records. than  those  whidi  have  been  laid 

.  before  your  lordships.  These  are  sufficient, 
at  least  as  specimens  of  the  practice ;  and  I 
must  retain  my  private  belief,   that  whether 


he  is  or  is  not  entitled  to  say  there  has  not 
been  that  sort  of  examination  which  may  be 
properly  called  a  search,  yet  that  there  was 
such  a  search  as  to  satisfy  your  lordships  of 
the  eeneral  nature  of  the  precedents  to  be 
found  in  these  records. 

Assuming  this,  what  is  the  result?  Upon  the 
one  hand,  you  have  a  great  many  instances 
indeed  of  first  indictments  being  abandoned — 
the  diet  being  deserted — ^where  the  libel  had 
been  abandoned  by  the  public  prosecutor 
before  the  panel  had  pleaded — which  we  never 
disputed  his  title  to  do.  We  never  hinted, 
that  he  has  not  as  good  a  title  to  abandon  as 
he  has  to  raise  and  execute  an  indictment,  if 
the  panel  has  not  been  brought  into  Court,  and 
parties  have  not  joined  issue.  In  a  certain 
number  of  these  instances,  you  have  evidence 
of  the  opinions  of  the  learned  persons  who 
conducted  the  business,  that  this  is  a  proper 
and  necessary  mode  of  proceeding,  because, 
by  proceeding  in  that  way,  they  put  themselves 
to  some  more  trouble  tnan  according  to  the 
mode  now  recommended  by  my  learned  friends. 
This  is  a  practice  as  to  whidi  there  could  be 
no  contradiction,  for  it  is  admitted,  that«  what- 
ever is  right  or  wrong  in  the  present  debate, 
the  prosecutor  may  abandon  the  old,  and  raise 
a  new  indictment.  This  is  a  practice  which 
can  only  show  the  opinion  of  the  public  prosecu- 
tors — most  learned  men — and  also  their  opinion 
of  the  way  in  wliich  the  Court  consideredT these 
matters.  It  is  impossible  you  could  have  the 
judgment  of  the  Court  upon  all  of  these  points. 
What  are  the  proofs  ?  Except  in  one  case,  it 
is  not  pretended  that  the  point-  was  brought 
before  the  Court  at  all,  so  that  there  is  no 
judgment  upon  it.  And  as  to  that  case,  all 
that  was  said  was,  that  there  was  some  conver- 
sation, but  no  record  of  it — a  conversation 
between  the  learned  gentleman  and  one  of 
your  lordships.  And  though  I  attended  every 
diet  as  counsel  for  the  panel,  I  certainly  do 
not  remember  that  conversation :  and  that  is 
all  that  is  brought  forward  as  a  precedent.  It 
is  a  jest  to  say  it  is  a  precedent.  It  is  incum« 
bent  upon  you,  and  you  perform  the  duty  as 
well  as  you  can,  to  attend  to  the  regularity  of 
your  proceedings ;  but  where  the  two  parties 
are  both  keen,  zealous,  and  anxious,  all  the 
zeal  of  the  public  prosecutor  on  the  one  side 
to  obtain  justice  for  the  public — all  the  acute- 
ness  upon  the  other  side  to  state  every  thing 
for  the  defence  of  Uie  panel,  in  so  far  as  useftil 
to  him,  it  is  natural  for  you  to  take  for  granted 
that  every  thing  is  right,  if  nothing  is  menti- 
oned as  being  wrong.  Therefore,  if  an  cAjec- 
tion  be  not  ^ted  on  either  side,  and  do  sot 
appear  from  any  innpeetion  of  ^e  record,  I 
submit  to  your  lordships,  that  to  stale  a  practice 
of  this  kiiid  as  being  of  any  authority  wnat^r, 
is  one  of  the  most  violent  attadE^  upon  n  f«igu<* 
lar  system  of  law  that  I  have  ever  beard  of, 
either  in  this  Court  or  in  any  other.  I  was 
counsel  for  Somerville.  I  dare  say  I  attended 
to  his  interest  as  weU  as  I  could.  He  was 
anxious  enough,  T  dare  say,  to  escape  convic- 


J 


2571 


Jqt  Itdminutering  unlawfiil  Oaths* 


A.  D.  1817. 


[238 


Uon  of  tlie  crime  of  whidi  he  was  accused — the 
crime  of  perjtiiy.  Bat,  noiwithstandiDg  my 
situation,  I  certaioly  did  not  consider  it  of 
tbBLt  great  eminence  which  the  pablic  prose- 
cutor seems  to  think  it  was.  I  did  not  consider 
myself  as  acting  as  a  great  legislator  upon 
the  occasion.  Nor  did  Mr.  SomerviUe  on 
the  piUoiy  think  he  was  dispensing  new  law 
ftr  me  government  of  your  lordshijps.  What 
was  done  was  done  with  consent  of  SomerviUe, 
and  without  objection. 

Tour  lordships  watch  orer  the  regularity  of 
proceedings — but  if  the  panel  consent  to  any 
particular  measure,  and  your  lordships  do  not 
observe  that  it  is  irregular,  can  that  affect  the 
proceeding  in  law,  and  a  most  important  prin- 
ciple in  law  f  What  I  apply  to  the  case  of 
&)menrille  may  be  applied  to  every  one  of  the 
cases.  If  they  coula  nave  produced  one  pre- 
cedent—one case  in  which  the  panel,  consi- 
dering it  to  be  necessary  for  his  defence,  or  of 
any  use  to  him,  had  opposed  a  proceeding  of 
this  nature,  and  you  had  overruled  the  objec- 
tion, I  should  have  considered  that  precedent 
iforth  all  the  rest  upon  both  sides  of  the 

aoestion.  No  such  precedent  has  been  pro- 
uced.  And  because  perhaps  a  hundred  pan- 
els have  been  brought  to  the  bar,  and  a  few  of 
them  have  allowed  this  proceeding  without 
objecting  to  it,  possibly  without  having  an 
interest  to  state  an  objection,  'and  possibly 
without  being  aware  objections  might  be  stated, 
as  junior  counsel  are  often  for  the  panels,  they 
cannot  be  considered  as  prec^cnts.  It  may 
be  for  the  interest  of  a  panel  that  his  trial  should 
not  be  delayed ;  and  mstead  of  putting  off  the 
time  of  the  Court  with  the  objection,  and  re- 
alining  longer  in  prison,,  a  panel  may  often 
wish  his  trial  to  proceed,  where,  had  his  counsel 
oflTered  the  objection,  and  supported  it  before 
tbe  Coart  by  argument,  the  Court  would  have 
siren  it  attention,  and  seen  its  propriety  and 
mce.  But  a  panel,  by  delay,  may  also  incur 
fiirther  expense,  to  which  he  will  naturally  be 
mveise.  This  person,  Mr.  SomerviUe,  was 
not  one  of  those  mendicant  clients,  of  which 
ihexeare  numbers  in  the  Castle  at  this  mo- 
ment. He  was  ..not  in  the  situation  of  the 
panel  at  the  bair,  whose  counsel,  from  a  sense 
of  public  duty,  are  putting  him  to  no  expense 
what^rer.  t,  for  one,  am  proud  of  my  situa- 
tMm/  and  every  one  of  my  learned  friends 
entertains  the  same  feeling.  SomerviUe  was 
ppt.ta  a  great  deal  of  expense  in  the  manage- 
nent  of  his  case ;  and  how  could  it  have  served 
Mm  to  delay  his  trial  from  day  to  day  ?  It 
would  not  have  availed  biim.  There  were  Mr. 
ISiQertDn  and  myself,  and  perhaps  another 
counsel  at  the  bar  at  his  expense.  There  is 
no  doubt  it  was  his  wish  to  go  to  trial  upon 
that  day. 

Lord  Jtutiee  Clerk. -^I  see  from  my  notes 
yea  did  move  the  Court  to  allow  the  expenses 
of  preparing  for  the  defence  of  the  panel. 

Mr.  Clerk, — I  feel  great  obligation  to.  your 
)x»rdahip,  and' so  mi&st  my  client  the  panel, 

VOL.  xxxm. 


for  your  mentioning  this  circumstance.  That 
shews  there  was  great  expense  attending  that 
trial,  and  as  there  was  great  expense,  Mr. 
SomerviUe  would  naturally  be  averse  to  any 
unavailing  delay,  which  must  have  been  attend- 
ed by  additional  expense. 

At  to  the  other  cases,  it  has  been  remarked 
by  the  prosecutor,  that  we  say  it  was  for  the 
interest  of  SomerviUe  to  go  on  with  the  trial, 
although  a  conviction  foUowed ;  and  then  he 
gave  us  a  most  facetious  contrast,  indeed,  be- 
tween this  case  and  another,  in  which  it  was 
not  for  the  interest  of  the  panel  to  state  the 
objection,  because  the  libel  was  not  well  found- 
ed, and  the  panel  was  acquitted.  In  this  way, 
says  my  learned  friend,  whether  convicted  or 
acquitted,  they  find  an  interest  not  to  state  the 
objection.  I  apprehend,  such  shifts  as  this 
will  never  stand  in  your  lordships'  minds  in 
place  of  solid  argument ;  for,  in  the  course  of 
a  century,  I  think  it  is  strange  a  panel  should 
not  find  it  for  his  interest  to  wave  such  an 
objection  as  this.  Delay  is  generally  incon- 
venient, and  an  expense  to  him ;  he  has  the 
advantage  of  the  tist  of  witnesses  to  be  brought 
against  him  being  given  in  the  indictment; 
and  he  does  not  know  what  other  witnesses 
may  be  brought  forward  under  a  new  indict- 
ment ;  and  it  is  utterly  impossible  to  account 
for  the  desires  and  wishes  of  men  in  such  cir- 
cumstances. One  thing  is  certain,  that,  in  the 
consideration  and  preparation  in  all  cases  past 
and  to  come,  it  has  oeen  and  frequently  will 
be  the  desire  of  the  panel  to  go  on  without 
stating  a  dilatory  objection.  I  apprehend, 
that  in  the  present  case  you  will  not  particu- 
larly inquire  into  the  motives  of  the  panel  for 
stating  the  objection.  He  seems  to  be  in  a 
dangerous  state — ^whether  you  will  find  against 
him  or  not,  it  is  impossible  to  say ;  but  he  is 
in  a  dangerous  situation,  and  I  cannot  be 
called  upon  to  explain  the  particular  motives 
for  wishing  for  the  delay ;  and,  therefore,  I 
submit  to  your  lordships,  without  makina  more 
remarks  upon  the  particular  cases  which  have 
been  adverted  to  on  both  sides,  that  these 
proofs  which  were  pleaded  on  by  the  counsel 
for  the  Crown  are  not  such  as  should  have  the 
least  effect  in  regulating  the  law  of  the  case, 
more  particularly  as  the  proofs  are  against  the 
Crown.  i 

But,  the  principle  of  the  law  is  still  more 
against  them.  Let  us  consider  what  is  men- 
tioned by  Mr.  Cranstonn,  the  proofs  of  single 
judges  refusing  bills  of  suspension.  A  panel 
was  tried  in  an  inferior  Court,  and  subjected 
to  an  ignominious  punishment,  of  which  he 
wished  to  get  quit  altogether  or  have  it  miti- 
gated. In  numerous  cases  persons  so  accused 
presented  bills  to  this  Court,  and  they  were 
refused  by  single  judges,  some  of  them  the 
first  judges  that  ever  appeared  in  this  country. 
Lord  Braxfield  was  one  of  them,  not  to  men- 
tion other  names.  Is  it  possible  to  conceive  a 
case,  where  a  man  so  convicted  had  not  an 
interest  to  dlqect  to  a  single  judge  refusing  his 
bill  ?  It  is  impossible  to  dispute  that  the  prac- 

S 


2591 


57  GEORGE  III. 


Trial  of  WiUam  Edgar 


lam 


ticewas  a^inst  the  right  principle,  and  the 
interest  was  against  the  ptactke.  Yet  when 
the  point  came  to  be  tried,  ^ou  were  of  opin- 
ion", that  the  pnttitice  mtMtt  yield  to  the  princi- 
ple of  law,  as  it  appeared  to  yoar  lordships. 

With  regard  to  the  prineiple  of  law,  a  few 
observations — It   occun  to  ne,  m  the  first 
{lAace,  that  no  attempt  can  be  more  desperaie, 
or  more  completely  nnflronded,  than  the  at- 
tempt made  by  the  Crown  counsel  to  cohvince 
yon  that  die  public  prosecutor  has  power  to 
abandon  an  Imlictment  after  a  panel  has  pleads- 
ed.    It  is  directly  in  the  teeth  of  thoie  au* 
thorities  which  we  quoted  to  your  lordships, 
coming  from  that  great  master  of  the  law  to 
whose  dktayovLt  lordships  give  great  attention. 
And  how  is  that  opposed  ?  They  camiOt  pre- 
tend to  say  that  we  have  misconstrued  this 
authority,  which  is  positive  and  express,  and 
cannot  be  explained  away.     But  they  have 
recourse  to  other  dkia  of  Mr.  Hume  as  b^g 
inconsistent  with  this^  Upon  lookiikg  to  these, 
I  have  to  express  my  astonishment  Siey  couM 
have  been  stated  as  inconsistent.    The  princi- 
pal of  them,  page  305,  first  vol.  of  Trtal  Tot 
UrimcF,  and  third  vol.  of  the  whole  work,  whete 
Mr.  Hume  reasoning  upon  another  pioitit  al- 
together, says,  *^  But  what  shall  be  said  when 
the  fact,  which  is  related  in  the  subsumption  of 
the  libel,  though  short* of  the  crime  charged  in 
the  major  propositioB,  amounts,  however,  to  a 
lower  crime  of  the  same  class;  as  in  the  case 
of  murder  atid  culpable  homicide ;  hamesucken 
and  assault;  theft  and  swindling;  notour  and 
simple  adultery;  ^and  some  others?  In  these 
circumstances,  and  on  finding  that  his  stoTy 
does  not  support  him  in  his  charge  of  thd  higher 
denomination  of  crime,  may  the  prosecutor 
nevertheless  maintain  his  process,  restricting 
his  charge  to  the  lower  species,  and  limiting 
his  conclusions  as  to  punishment  accordingly? 
This  is  an  important  question ;  and  some  di- 
versity of  opinion  there  has  b^n  among  law- 
yers about  it.    Some  have  thought  diat  there  is 
a  violation  of  that  decorum  and  propriety  so 
fit  to  be  observed  in  all  criminal  proceedings, 
if  any  '  one  shall  be  tried  on   a  libel  (the 
fundamental  writ  of  the  whole  process)  which 
esfade,  amd  taken  as  it  is  laid  before  the  Court, 
is  a  disjointed,  mis-shapen,  and  inconclusiTC 
composition ;  and  tliat  this  consideration  alone 
is  a  good  reason  why  no  such  accusation  ought 
to  be  sustained.     But  further,  say  they,  to 
shew  the  prosecutor  any  indulgence  in  this 
article,  is  attended  with  a  real  hardship  to  the 
panel,  who  prepares  for  his  defence*again8t  the 
libel  as  laid ;  and  who  knowing  that  he  is  secure 
on  the  ground  which  is  iaken  there,  will  na* 
tuially  be  less  diligent  or  solicitous  in  providing 
for  his  exculpation,  in  regard  to  any  inferidr 
degree  of  vguilt.    One,  for  instance,  who  is 
aecused  of  parricide,  and  who  knows  thbi  the 
person  he  killed 'vtas  not  Ills  fiithev^  or  who  Is 
accused  of  hamesucken,  and  knows  thai  die 
aiaauH  was  not  made  on  tbe  comphnner  at  his 
nome  }•  may  naturally  conchide  thaltMsBlnnder 
is «f  itself  aniikleBt  to  savf  his  lift;  and  will 


put  himself,  therefore,  to  less  trouble  witth  re-^ 
spect  to  those  other  pleas  of  self-defence,  gross 
provocation,  and  ^e  like,  which  might  serve 
to  exculpate  him,  or  to  alleviate  his  guilt.  If 
he  were  tried  on  an  ordin^  charge  of  bieatihjg, 
or  of  murder."    Then  he  says,  **'The  prosecu- 
tor, too,  cannot  well  say  that  he  suffers  any 
wrong  in  tfie  enforcing  of  sucSi  a  rule ;  sinee, 
fbr  o^inary,  he  has  the  means  of  being  accu* 
rately  informed  of  the  fact  before  raising  his 
libel;  and  if  be  have  any  doubt  Of  the  pkoper 
style  of  the  crime,  he  may  lay  his  chtog^  for  it 
under  all  the  seversl  denominations  wh&cli  may 
eventually  be  found  to  suit  the  case.    Nay, 
there  is  still  no  hardship,  though  he  discover 
the  weidcness  of  his  case  aft^t  the  execution 
only  of  his  indictment,  siiiee  at  any  period' 
before  remitting  it  to  at)  asance  he  may  aban)loii 
thi^  fkuUy  libd,  and  raise  another  in  more  cor- 
rect and  better  form.^  *  Does  Mr.  Hume  or  not 
cdnrecthis  own  errors,  asf' they  are  suppoted 
t6  be'  in  the  other  passage  he  had  written,  as 
to  the  power  of  the  prosecutor  to  abandon  his 
libel?  lliere  is  not  the  l^t  hint  of  it.    Tlie 
passage  quoted  by  my  client  is  that  which  must 
be  understood  as  limiting  this  general  passa^as 
to  the  power  of  the  prosecutor.'  That  he  may 
abandon  the  libel  there  is  no  doubt,  espedalqr 
before  the  indictment  is  pleaded  to;  nay,  a^et 
it,  in  a  particular  manner,  fhere  can  h4  no 
doubt ;  for  he  has  only  to  move  the  Court,  who 
will  do  so,  unless  there  be  apparent  injustice 
in  doing  so.    Mr.  Hntne  says,  fit^t,  he  may 
abandon,  and,  hi  the  second  place,  that  he  has 
it  not  absolutely  in  his  power— that  if  is  thao- 
curate  in  point  of  style  to  say  that  he  does  if 
at  ail — for  that  it  is  the  Couri  in  cases  whether 
public  or  private.  The  Court  couM  keep  him 
to  the  libel  if  nropet;  and  ^ithc^forcb  him  to 
desert  linrplkUer,  to  the  eflM  of  haying  no 
right  to  bnng  a  new  trial,  or  hold  him  to  the 
libel  already  pleaded  to.    This  is  Mi'.'Hume^s 
fair  meaning.    So  much  has  been  said'  ujpon 
this,  that  I  niall  not  trouble  you  with  any  mdi^ 
remaiks  upon  the  power  of  the  prbs^utor  iki 
desert  his  libel. '  I  may  assume,  be  has 'no 
power  without  the  authority  of  th^  Coiirt  '^He 
nas  just  the  same  power  as  h  man  in  other  in- 
stances to  do  what  is  lawfol,  but  only  in  sight 
of  the  Court.    Therefore  any  notice  from  hiin 
that  he  was  to  do  such  a  thing  might  be  very 
good  notice  that  he  was  to  move  the  Courts' 
but  could  be  nothing  ftfrther.    He  bad  powe^ 
to  give  notice  of-  that,  and  to  do  it ;  but  stiH 
it- was  only  a  notice  of  intention,  and  it  i^  hot  a 
measure  till  the  Court  interpose  for  the  pdi^. 
pose.    Ibis- is  the  sum  and  sul>stance  6f  V^kt 
can  be  extraifeted  from  Mr:  Hume  oik  tike  subj^^' 
the  authority  to  Ivhtch  youbaVe  been    '    - 
tomed  to>efer  in  all  cases.     ' 

As  to  Mt.  Bttriiret^  h^  either  is  n 
perhaps  corrects  himself  in  another 
and  be  would  ^veadmitt^)umsejiC.4i^i 
passase  was  to  be  understood  tiihmpd^$9»A. 
that  the  Court  should  consent. 

Let  us  see  where  the  rest  of  the  aiEument 


lies:    AismiiiDg  ihm  thtfpablk 


^•f  f 


^i^ 


Jot  Adminisigring  unlawful  Oaths. 


A.  D,  1817. 


[263 


no  power,  without  tbe  act  of  the  Court,  to 
•^•]|4jOQ  the  lihel  to  which  the  panel  has 
pjeaoed,  U  opous  to  me  that  a  most  ready  way 
<p  this  question  is  to  consider  the  case  of 
Charteris;  what  was  done  in  that  case;  and 
what  is  to  be  infened  from  that  case, 

Jn  the  ease  of  Chaiteris  four  indictments 
were  raised;  and  my  learned  friends  were 
B^jiytf  tp  a^KTt  (they  are  better  acquainted 
with  these  aocient  tim^  than  we)»  that  it  was 
il  that  time. a  practice  to  raise  matiy  indict- 
ments. Many  of  the  practices  of  that  period 
*a9^  better  honoured  in  Uie  breach,  thui  tbe 
obfienrancey  and  niany  of  Uiem  are  so  by  the 
preeent  Court.  Notwithstanding  this,  it  was 
said  to  be  the  practice  in  those  times  to  rais« 
a  whole  .bunch  of  indictments  at  the  same 
ti^iie.  This  was  done  in  the  <»fa  of  colond 
Charterisy  who  said  he  should  not  be  obliged 
to^  answer  to  the  whole,  fio,  but  answer  to 
t^/ope  read  in  Cour(,  and  you  may  plead  to 
^kis  lo^Mstment.  You  were  told  the  question 
was,  whether  the  prosecutor  could  insist  in 
€nir.  at  the  same  time.  I  see  no  s«ch  qaestioa. 
t(i^. .  On  the  oontraryi  it  is  stated  by  Mr. 
limmfi  that  some  9f  these  indictmenU  were 
^iQed  for  other  diets.  But,  be  this  as  it  mayy 
when  Ghaneris  wa^  told  he  had  only  to  plead 
to  this  ii»dictment,  what  did  that  force  the 
public  jwQsecutor  to  do?  Whether  he  was 
altempting  to  carry  on  four  at  the  same  time, 
or  'oDC»  is  of  no  consequence ;  for  the  Court 
ioioed  the  others  to  be  abandoned.  Why  was 
tbe  pablic  prosecutor  obliged  tQ  give  up  these 
indictments?  upon  what  ground ?  Way  was. 
ikot  be  allowed  to  go  on  with  one^  suspending 
mr  the  head  of  the  panel  all  the  others? 
why  did  not  he  say,  he  wished  this,  and  tiie 
Covui  allow  itp—the  Court  saying,  *•  only  an- 
swer one.  at  a  time,  and  no  harm  to  suspend 
the.ptheJs  over  your  head :  They  are  not  called 
Dpw,  and  may  never  be  called :  If  you  are 
ai^qjvitted^.you  cannot  be  tried  again  for  the 
same  offence :  They  are  for  the  same  offence, 
and  therefore  there  is  no^arm  in  having  these 
all  againstyQu."  The  Court  would  not  listen 
to  this.  The  proseihitor  was  obliged  to  give 
up  tbe  indictn)ents,aiid  thenCharteris  pleaded- 
iVtt  is  a  ^ir  state  of  the  case.  Now,  rohy  did 
the  Court  ol£gp  the  prosecutor  to  give  up  the 
indictments  before  tie  pleading?  Thai  is  a 
h^ipa  question ;;  and  no  answer  has  been  given 
to  it.  The  a^wer  is  given  b^  Mr.  Hume,  and 
a  jomt  aatisbctoiy  answer  it  is,  and  he  repeats 
'  itji^^  and  again  in  different  passages.  The 
r^lp^  was — oppressing  the  panel  in  the  ma- 
nagement i)f  his  defence.  The  Coprt  ought 
nj7  to  allow  that,  and  why?  Because  con- 
tmry  to  the  rules  of  justice,  which  are  para- 
mount to  aH  other  rules  in  this  CourL  We 
were  told,  that  an  act  of  parliament  is  of. 
gi;ea|«r  anthori^  than  a  law  of  practice  of  the 
Cpurt.  I  apprehend  a  judgment  of  the 
Court,  proceeaing  upon  rules  of  justice,  is 
stranesr.thai^aoX  other  precedent.  .1  am  en- 
title^ tp  jassoaae,  that  tais  was  considered  bv 
the  <Coart  as  tha  jostica  of  any  case  m  which 


more  than  one  libel  would  be  hanging  over  a 
man's  head  while  pleading.  Mr.  Cransto^n 
put  a  question,  would  it  have  be^  fcoi^peient 
tor  the  prosecutor,  after  abandoning  these,  tq 
have  served  them  over  again,  or  new  p^es  to 
the  same  effect  P  If  any  public  prosecutor  had 
dared  to  do  such  a  thing,  the  Court  would 
have  taught  him  his  duty.  If  any  public  pro- 
secutor had  been  daring  enough  so  to  tamper, 
and  attempt  to  evade  the  justice  of  the  Courts 
in  a  manner  which  would  have  been  so  grossly, 
shameful  (I  am  not  intending  to  apply  any 
strong  epithets  to  the  proceeding  before  you : 
I  think  It  is  a  mistake,  and  a  natural  one,  on 
the  part  of  my  learned  friends,  to  act  as  thepr 
have  done) :  but  in  the  case  of  Chaneri^,  it 
would  have  been  considered  a  gross  contempt 
of  the  judgment  of  tbe  Court.  What  has 
been  done  in  the  present  case  ?  It  seems  that 
a  public  prosecutor  cannot  serve  foqr  libeU  at 
once,  to  the  effect  of  bringing  a, panel  to,  trial 
upon  one.  Though  he  cannot  do  it,  he  can 
do  another  thing.  He  has  no  occasion  to  serve 
his  libels  for  the  same  time ;  but  immediately 
aiter  tbe  panel  has  pleaded  to  oney  be  may. 
serve  half  a  dozen  for  the  same  offence,  beibre 
that  libel  which  has  been  pleaded  to  has  been 
^disppsed  of  by  the  Court..  It  is  ludicrous  to 
"maintain  this.  It  is  contrary  to  all  reason 
that  could  be  applied  to  a  thing  of  the  kind. 
If  there  is  any  legal  principle  in  the  case  of 
Charteris,  this  is  impossible. 
I  apprehend  the  question  lies  here.    If  the 

f>roaecotor  was  not  entitle4  tp  serve  a  new 
ibel,  then  the  new  libel  was  not /lerved,  .for 
there  is  one  great  law  of  justice  as  of  eqiiity. 
**  Id  tantum  pot$umiu  quod  dfi  jure  pofiuutrnJ* 
If  the  public  prosecutor  had  no  right  to  serve 
that  libel,  then  you  will  consider  that  the  libel 
was  not  served)  and  that  is  my  reason  for.  in* 
sisting  at  your  lordships' bar,  thjat  the.  panel 
cannot  be  obliged  to  plead  to  that  libel.  The 
former  libel  has  not  been  deserted  to  this  mo- 
ment; you  have  not  yet  consented  to  it.  I 
am  not  going  to  Hy  anv  thing  so  insincere  as 
that  you  will  be  called  upon  to  refuse  vour 
consent,  when  proposed  on  the  motion  of  the 
public  prosecutor.  But  the  public  prosecutor 
has  taken  a  high  sution  here.  He  refuses  to 
move  your  lordships  to  desert  the  diet ;  and 
therefore  you  have  never  had  an  opportunity 
of  considering  the  point,  whether  it  should  be 
deserted  or  not.  If  the  diet  had  been  de- 
serted this  day,  before  we  began  to  state  this 
point  to  your  lordships,  there  is  another  ground 
sufficient  for  us  which  would  have  arisen.  I 
shall  not  plead  any  thing  without  an  interest. 
I  jam  entitled  to  tell  them,  the  libel  would  in 
thiat  case  have  been  considered  as  served  this 
day,  that  I  m^y  have  time  to  prepare  my  de- 
fences. I  shall  not  enlarge  upon  the  hardship 
which  might  arise  to  the  panel,  from  being 
obliged  now  to  answer  to  this  libel.  It  is 
sufficient  for  me,  that  the  practice  which  has 
been  followed  here  is  contrary  to  the  esta- 
blished practice  before  your  lordships,  and  the 
best  prosecutors  have  uniformly  deserted  libels 


263] 


£7  GEOUGE  111. 


Trial  of  IViUiam  Edgar 


Ca64 


before   serving   second   iDdictments.      There 
may  be  hardship  in  this  case,  and  thei%  might 
be  greater  in  others.    As  to  the  case  which 
was  stated  by  Mr.  Cranstoun,  of  two  libels 
depending  at  the  same  time^  and  one  of  them 
where  the  panel  was  to  be  tried  in  Edinburgh, 
and  another  at  Aberdeen,  that   proceeding 
would   be    so   harsh    and  unjust,  that  even 
leaving  mattera  to  the  discretion  of  your  lord- 
ships (which  every  sound  rule    of  jurispru- 
dence is  against,  for  the  Court  should  have  no 
discretion  as  to  such  matters),  you  would  in- 
terpose a  remedy  for  the  eviL     But  the  rule 
6f  law  is  not  more  against  such  a  proceeding 
tlian  against  the  present.    I  should  have  no 
apprehension  of  the  consequence  in  that  case ; 
for,  till  a  total  desertion  of  law  and  justice  in 
the  country,  such  a  thing  could  bot  be  admitted. 
But,  is  it  no  hardship  to  be  perplexed  with 
two  libels  at  the  same  rime }    The  question  of 
relevancy  is  attended  with  the  greatest  nicety 
and  difiiciilty,  and  has  given  counsel  a  great 
deal  of  trouble  alteady— and  is  there  no  hard- 
.ihip  in  having  to  give  as  much  consideration 
to  a  new  libel?    That  former  libel  was  at* 
tended  with  so  much  difficulty,  and  occupied 
so  much  of  the  attention  of  the  panel's  coun- 
sel, that  there  is  no  saying  what  pleas  might 
have  arisen  to  them  under  that  libel,  and  pre- 
^nted  them  fi^om  paying  attention  to  the  new 
libel.     What  if  the  connsel  in  the  former  case 
Imd   not   thought  it  incumbent  on  them  to 
support   the  panel  in  the  present  ?    What  if 
he  had  been  deserted  by  his  agents?    I  do 
>tioi  suppose  there  is  any  chance  of  that  in  this 
case ;  but  this  signifies  nothing  at  all  to  a  ge- 
neral rule,   to  which  your  lordships  should 
adhere  in  all  caaes.    There  have  been  cases  in 
which  a  man  has  beeti  defended  by  counsel 
and  agent  in  one  indictment,  who  did  not 
think  it  incumbent  npon  them  to  defend  him 
in  another.    It  wIa  said,  that  the  panel  had 
notice  a  considerable  time  ago  tliat  the  libel 
was  to  be  abandoned.    That  Hvas  an  accom- 
modation.   But  what  if  the  public  prosecutor 
had  given  no  such  notice  ?    It  was  not  incum- 
bent on  him  to  give  any  notice.    And  as  the 
panel  would  have  been  brought  to  this  bar, 
with  his  counsel  and  agents  ready  to  defend 
him  in  the  former  case,  after  bestowing  great 
attention  upon  it,  but  not  prepared  to  defend 
him  in  this  case ;  is  not  that  a  situation  which 
your  lordships  would  take  into  consideration, 
if  any  thing  depends  npon  the  possible  bard- 
ship?     The  counsel  and  agents  might  hive 
been  brought  to  your  lordships'  bar,  under  the 
impression  that  the  trial  was  to  go  on  on  the 
first  indictment.     When  they  come,  ready  to 
defend  him,  they  are  told  that  that  case  is 
not  to  be  tried.    The  prosecutor  prays  the 
Court  to  desert  the  diet  pro  loco  el  tempore^  and 
then  proceeds  npon  a  new  indictment,  of  whidi 
the  counsel  and  agents  bad  no  notice  what- 
ever.   Having  held  this  out  against  him,  he 
finds  the  whole  trouble,  research,  time,  and 
expense  of  previous  preparation,  thrown  away, 
and  that  he  must  be  ready,  upon  the  most 


summary  warning,  to  proceed  to  trial  on  ano- 
ther indictment. 

I  may  be  told,  such  a  case  can  hardly  hap* 
pen,  in  which  the  panel  can  be  deprired  (yf 
the  whole  mdueUs ;  but,  if  be  may  be  deprived  of 
even  a  part  of  the  indueia,  he  may  therebv 
lose  the  assistance  of  his  agent  ana  counsel, 
and  what  is  more,  may  be  deprived  of  the 
most  material  witnesses. 

We  are  told,  that,  in  this  indictment,  there 
is  only  an  alteration  in  a  few  words  of  the 
former.  There  is  the  very  greatest  difierence 
between  the  two  indictments;  which  is  most, 
difficult  to  defend,  it  is  not  for  me  to  say. 
The  major  proposition  is  the  same  in  both; 
but  the  minor  is  essentially  different ;  and  the 
two  require  different  sorts  of  arguments. 

Lord  Hemumd. — ^This  objection,  not  veiy 
material  at  first,  has  now  as  to  the  panel's  In- 
terest dwindled  into  nothing.  For  as  it  is  not 
pleaded  that  the  second  indictment  is  null,  so 
as  soon  as  fifteen  days  elapse  from  the  aban- 
donment by  the  prosecutor,  he  can  be  brolkg|ht 
to  trial.  But  it  is  argued  there  is  a  distinc- 
tion where  the  panel  has  pleaded,  t.  e.  uttered 
the  words ''  not  guilty,^  for  that,  it  is  said,con- 
stitates  litiscontestation.  I  doubt,  if  that  be 
a  phrase  in  criminal  law.  It  does  not  occur 
in  any  one  authority.  But  if  it  be,  it  mnst  be 
understood  as  in  cwU^m$.  •  Litiscontestation, 
however,  is  not  constituted  by  defences  nor 
by  pleading,  it  never  takes  effect  till  an  aqt  be 
extracted ;  not  an  act  and  commission  of  mo- 
dem introduction,  but  an  act  far  proof  before 
the  Court,  or  before  the  Ordinaries  on  oath* 
and  witnesses. 

On  this  analogy  the  powers  of  the  prosecu* 
tor  continue  till  a  jury  be  im);)anelled,  and  so 
was  found  in  the  case  of  Archibald,  1708. 
On  this  ground  I  cannot  agree  to  strike  out  of 
the  list  of  cases,  those  in  which  ^^  not  guilty  "^ 
has  not  been  pleaded.  On  the  other  hand,  tM 
panel's  argument  cannot  be  redargued  on 
what  is  called  list  of  cases  beyond  the  period 
of  search.  Additional  cases  are  given  in  for 
the  panel,  in  all  of  which  the  diet  had  been 
expressly  deserted;  but  precedents  enough 
remain  to  settle  the  law. 

In  1st  case,  Lawson. — Diet  deserted. 

In  2nd  case,  fiums.~No  desertion,  and  trial 
proceeded  on  second  indictment. 

In  3rd  case.  Berry. — Same  procedure. 

5.  Mendham. — Argument  that  panel  had  no 
interest  to  object;— not  understood. 

7.  Lindsay  Crawfiird. — A  serious  case,  yet 
wi^ut  desertion ;  trial  proceeded  on  second 
indictment.  It  is  argued,  that  in  none  of  tbese 
cases  was  the  objection  pleaded.  Why  ?  be* 
cause  it  was  tiot  thought  relevant :  The  whole 
bar  has  been  in  a  dream,  till  the  ingenuity  of 
the  counsel  here  discovered  what  had  been  hid 
from  their  predecessors,  though  with  all  de^ 
ference  to  them  not  their  inferiors  in  ability  i 
and  the  same  observation  equally  applies  to 
the  Court. 

Is  not  this  fiufficicnt  to  establish  a  point  of 
fonn?    In  one  case,  hovrever,  the  objeoiion 


2651 


y&r  AdmutitttritiguHittti^l  Oalhi. 


A.  D.  1817. 


(906 


was  broogbt  into  Yiew  by  myself,  Ballantine 
against  Somenrille.  My  notes  correspond  with 
Mr.  Drammond's.  An  objection  by  a  judge  is 
as  strong  as  that  by  a  counsel. 

In  10th  case,  Horn.— No  desertion,  and  trial 
proceeded  on  second  indictment.  That  second 
indictment  is  competent,  inveterate  usage 
proves. 

Lord  Giiiies, — This  objection  came  unex- 
pectedly, and  we  gave  our  opinions  imme- 
diately after  it  was  stated.  It  happens  that 
the  opinion  which  I  then  delivered  is  that  which 
I  have  formed  Sifter  all  I  have  since  heard  of 
the  case.  The  opinion  I  gave  was,  that  the 
fiist  indictment  was  not  abandoned  by  the 
service  of  the  second.  I  understood  the  plea 
stated  on  the  part  of  the  public  prdsecutor  to 
be,  that  by  serving  a  second  indictment  the 
first  vras  abandoned,  and  that  there  was  there- 
fire  no  occasion  for  deserting  the  diet.  I  think 
this  doctrine  erroneous.  I  think  the  first  in- 
dictment did  not  fall  by  the  execution  of  the 
second ;  and  the  consequence  is,  that  as  there 
are  two  indictments  subsisting  against  the  panel 
at  the  same  time,  one  of  them  must  be  dis- 
posed of  before  the  other  is  proceeded  in.  The 
service  of  the  second  indictment  does  not  ap- 
pear to  me  to  be  null,  but  the  prisoner  must  be 
entitled  to  such  delay  as  your  lordships  may 
think  reasonable,  to  prepare  for  his  trial  upon 
it. 

I  conceive  it  to  be  certain  that  the  Court 
would  think  it  a  piece  of  great  injustice,  if  the 
public  prosecutor,  after  serving  a  second  indict- 
ment, sbonld  insist  on  proceeding  with  the  first ; 
but  I  know  no  principle  or  practice  which  en- 
titles me  to  say  he  cannot  do  this.  But  whether 
he  would  be  entitled  to  go  on  with  the  first  or 
not,  the  prisoner  may  be  entitled  to  insist  that 
he  should  go  on  with  it.  What  is  the  answer 
made  to  this?  A  broad  assertion  that  the 
pablic  proseciifbr  has  entirely  the  control  over 
his  own  instance, — that  he  may  abandon  it 
whenever  be  pleases, — and  that  we  cannot  in- 
sist that  it  shall  be  prolonged  a  single  moment 
after  he  pleases.  He  has  certainly  a  control 
over  his  instance, — he  may  pass  from  his  first 
indictment, — but  what  is  the  consequence? 
The  Court  pronounces  an  interlocutor  deserting 
the  diet,  and  in  such  terms  as  they  think  proper. 
If  he  passes  firom  it  for  no  reason,  or  for  bad 
reasons,  your  lordships  may  desert  the  diet 
un^pUciUTn  You  have  the  same  power  of 
checking  him  as  any  private  prosecutor. 

The  assertion,  that  ^  his  majesty's  advocate 
possesses  an  uncontrolled  power  over  his  in- 
stance in  all  stages  of  a  criminal  process,''  if  it 
is  to  be  taken  literally,  is  directly  in  opposition 
to  the  doctrine  laid  down  in  the  case  of 
Archibald  in  1768 ;  but  if  it  merely  means  that 
he  possesses  a  power  over  his  instance,  subject 
only  to  the  control  of  the  Court,  then  it  means 
nothing  but  what  I  have  already  said,  that  al- 
tbough  the  public  prosecutor  may  withdraw  his 
instance,  yet  the  effect  of  his  doins  so  is,  that 
tile  Court  is  called  upon  to  desert  ue  diet,  but 


in  such  terms  as  they  think  proper,— ^ro  hoQ 
et  tempore^  with  right  to  him  to  insist  again ; 
or  if  the  prisoner  ^ews  that  he  acts  impro- 
perly, then  your  lordships  can  desert  it  sim- 
plicUer. 

I  must  say  generally,  that  I  am  not  in  any 
case  for  introducing  novelty  in  points  of  prac- 
tice, or  doing  any  thing  inconsistent  wim  es- 
tablished law,  by  which  a  panel  may  be  pre- 
judiced, or  which  has  a  tendency  to  increase 
the  power  of  the  public  prosecutor.  His  poweit 
in  this  country  are  far  greater  than  in  the  neigh- 
bouring kingdom — greater  perhaps  than  in  any 
other  country,  I  do  not  say  that  they  am 
greater  than  they  ought  to  be.  But  as  Uiey  are 
so  great  they  should  be  watched  by  us.  Viewing 
the  matter  in  this  light,  I  think  it  proper  to 
state,  that  the  prosecutor  having  raised  a  se- 
cond indictment,  the  Court  may,  upoh  his  mo- 
tion, desert  the  diet  pro  loco  et  tempore.  It 
remains  for  the  prisoner  to  shew,  if  he  can, 
that  the  second  indictment  has  been  raised  and 
the  first  abandoned  for  unjustifiable  purposes  ; 
and  if  he  can  make  out  this,  your  loniships  will 
desert  the  diet  umpliaier, 

I  state  these  matters  with  reference  to  general 
principle,  and  not  to  any  tiling  which  has  oo» 
currea.  For  there  is  no  plea  here  of  actual 
hardship,  and  the  panel  cannot  be  exposed 
to  any  injury  whatever  from  what  has  taken 
place. 

The  only  point  upon  which  I  gav^  no  positive 
opinion  formerly  is  now  one  of  the  pleas  of  the^ 
panel,  that  the  service  of  the  second  indictment 
IS  null  in  consequence  of  the  first  indictment 
not  having  been  deseited.  I  said  formerly  I 
did  not  think  so,  and  I  remain  of  that  opinion. 
That  opinion  is  formed  upon  considering  the 
precedents  mentioned  in  the  additional  mi-, 
nutes. 

With  reference  to  the  practice,  I  need  add 
nothing  to  what  has  been  said.  As  to  the  case 
of  Somerville,  we  are  informed  that  the  diffi- 
culty was  started ;  and  what  was  the  conse- 
quence ?  The  objection  on  being  argued  was 
overruled.  In  that  case,  after  an  indictment 
had  been  raised,  executed  and  pleaded  to,  the 
Court,  without  deserting,  proceeded  to  the  trial 
on  the  second.  I  had  the  honour  to  sit  as  a 
judge  upon  that  trial,  and  I  think  we  were 
wrong.  I  think  it  was  the  duty  of  the  Court 
to  have  disposed  of  the  first  indictment  by  in- 
terlocutor oefore  proceeding  to  trial  on  the- 
second  ;  and,  in  not  doing  so,  our  proceedings 
appear  to  me  to  have  been  erroneous.  The 
proceeding  in  the  case  of  Hamilton,  in  which 
Duncan  Forbes  "  consents  to  the  deserting  of 
the  diet  without  prejudice  to  him  to  insist  in 
the  new  indictment,**  appears  to  be  more  correct 
than  that  in  Somerville's  case.  '^  The  lord 
justice  clerk,  &c.  in  respect  of  the  above  con- 
sent, desert  the  diet  upon  this  indictment, 
witliout  prejudice  to  the  pursuer  to  insist  upon 
the  new  indictment  as  accords.*'  That  is  the 
principle  upon  which  I  proceed^  and  that  is  the 
precedent  whiich  ought  to  be  followed.  For  I 
cannot  subscribe  to  the  doctrine,  that  a  libel, 


1M9]         57  CllBORGB  UL 

diiMA  ill'  sn^y  citetitnMkixces'  iti  ^di  tcfruft  ai 
^M  Md-  addhroeate  chooses  to  dietatISi 

All-UiM  refmaHis  Us  the  qoesihm/'vvftkt'del^ir 
shall  be  given  to  the  prisoner  ?  At  present  1 
|M  ttbt^nSbii  on  tihat!; 

JkM  PiMfl^-^I  faaV^  nb  reason  tbtfaint; 
«M«^  fiom  th^  aniietf  dbplayed  by  th6 
jirtKmefer-coimscft  in  aiguing  th^  point,  that 
Iftife  cpi^stion*  rt  isftn^  is  of  anr  importance  t6 
tb^pAltem^i  but  it  is  of  importance  to  the  la"*^ 
iM  to  tb«  'pnoctice  of  this  Contt ;  and  I  trust, 
thity  aft^r  having  heard  and^read  so  miich  on 
tfi6  subject,  we  shall  be  able  to  pronounce  an 
itfttitocutor  which'  will'  set  this  matter  on  a 
|MMr  fdoting^  in  tiriie  to  come: 

Tne  atgumeeft  so  abty  stated  by  Mr.  Crans- 
CMI  is  iMTW  reduced  int6  writings  and  stands 
ufMn'thb  record  'of  the' Court ;  smd  it  appears 
16  vie.  that  in  the  radical  point  there  is  a  ma- 
tiriitliefMt  on  that  "side  of  the  bar.  It  is  said 
m  Ae  ininute  for  Ihe  prisoner,  that  it  is  Incdm- 

Kti6nt<t6  serve  ofUiglibet'wfiile  another,  by 
ving  been  pleaded  to,  is  stiS  current  agdnst 
•rpaneh  Thn  is  the  first  und  iadical  question. 
Wte  utast  first 'consider  whether  a  second  libeV 
Cttkf  fi^  served  while  a  former  is  ii)  dependence, 
9Bad  alleir  this  panel  has  pleaded  guilty  or  not 

grilty  to  fit.  Now,  upon  this  poit^t  I  maintain' 
at  there  is  no  auUiority  in  the  text-books,  or 
itt  the'plrecedetifs  of  this  Court,  for  the  propo- 
8itf6n'Udvaficed  by  Mr.  Cranstoun. 

A^diiltitlldtioii  has  iiid^ed  been  tdken  between 
di^cAseof  aprisitynet'lulvxng  pleaded  to.  the' 
fifst'iildictmeut^  and  his  not  bavng  as  yet  been 
oHUM  U)^  to-ple^ ;  and4t  is*  true  that  many ' 
of  th^  decided  cases  which  have  been  noticeo, 
reftr  only  tb'the  c^uie  of  the  panel  not  having* 
pleaded.  T^e  case  of  I^wson  in  1785 — of 
Bttms' aita'Veitch  in  it^— of  Betiy  and 
Bbb^rtMi^'aiid  CaUendar  in  1793^-of  iScott  in 
1794^-^  Lindsay  Crawfurd  and  Bradley  in 
18ft ;  tlie  older  c^ues  of  Nfcolson  in  1711,  and 
In|^lisin'l7!20,iWtBre  all  of  thenr  cases  in  which 
tUejMUt^l  had  not  pleaded  to  the  indictment; 
aUdj  in  such  cases-,  it  is  admitted  by  the  priso- 
ners^ cotkisel  in  the  Argument  which  we  have 
htofd.  that  a  se^onld  indictment  may  be 
•A*vea.' 

Bttt'ImUst-VentilTe  to  dt4te  that  there  is  in 
pribcipleno  room  for  the  tltstinction  between 
the  tase  of-  a  prisoner  having  pleaded,  and  his 
nbtlnlving  plet^ded  to  th^  indictment,  in  so  far 
a^^oocehis  the  right  of  the  public  prosecutor - 
Uf  sertea  eecond  indictment  upon  him.  If 
tlkttf  Was  room  for  this  distinction,  the  diet ' 
eiMildltever1>e  deltert^  after  the  ))riAoner  had 
pleads  to  theindictm^tit,  and'  an  tnteiiotutor 
onr  the  rele vancnr  had  1)een  pronoubced ;' — the 
prtMiler  wdoM  haVe  a  jur  qudaxtmn  in  the  pro- 
ceeding8--^he  Would  be Entitled  to  say  that  the 
CduH  bas  no  ^wet  to  desert  the  diet.  This 
pdhit  'Was  most  aUy  -argued  in '  the  case  of ' 
AjChibfldd;  in  iTdV  whibh  is  reported  in 
Irlitoirin^ 'caM;  Th^rie  wai  mucH  learning 
4ii^^ititMiargQtt(eaft;  aiid ^i&irepon of 


TrM  qfWUUtM  Sctgaf 


C3I68 


tUcf  cstke  has  ali^isted  me  iii  forming  my  opinion 
oil  the  question  now  before  us.  it  was  con- 
tended in  the  case  of  Archibald,  that  the  panel 
having  pleaded  to  thie  indictment,  and  an  in* 
terlo^utof  of  relevancy  having  been  pronounced, 
the  diet  could  not  be  deserted.  But,  in  the 
face  of  this  plea,  it  was  found  by  the  Court 
that  the  public  prosecutor  had  a  right  to  c^ 
upon  the  Court  to  desert  the  diet,  and  they  did 
desert  aticordinglv. 

llie  truth  is,  tii^t  it  is  incorrect  to  speak  of 
joining  issue  or' of  litiscontestation  in  criminal 
matters ;  the  reason  is,  that  there  is  no  room 
for'  the  contract  upo£  wbich,  in  civil  causes, 
litiscontestation  proceeds.  The  diel  may  be 
deserted  at  any  stage  of  the  procedure  until  the 
assise  is  9et,  "We  have  now^''  (says  Mr.  Hume, 
wben  treating  of  this  subject,  vol.'  ii.  p.  86.) 
"  advanced  to  that  period  of  a  criminal  process, 
when  it  assumes  a  new  shape,  and  is  in  several 
respects  lAaterially  alteredjin  its  nature  by  the 
naming  and  swearing,  or,  as  we  call  it,  tetting 
of  the  a^ize  of  fifteen  persons,  who  are  to  pass 
on  the  trial  of  the  prisokier.  In  particular,  thai 
step  is  attended  with  this  change  in  the  con- 
dition of  the  process,'  that,  the  prosecutor  no 
longer  has  it  m  his  power  for  any  reason  to 
obtain  a  desertion  of  the  diet,  but  must  let  his 
interest  take  its  fkte  with  the  libel.  Until  then, 
and  even  afte^  interlocutor  of  relevancy,  the 
prosecutor,  on  good  cause  shewn  for  it,  may 
still  be  allowed  to  desert  the  instance  pro  loco 
et  tempore^  and  save  his  right  of  insisting  anew, 
at  a  more  convenient  time  and  on  another. in* 
dictment,"  &c. 

Accordingly,  webave  a  number  of  authorities 
for  the  proposition  that  the  public  prosecutor 
may,  before  the  assize  is  set,  desert  the  diet, 
and  serve  a  second  indictment  on  the  panel. 
We  have  thewbote  cases  of  Hamilton  in  1714, 
of  Femie  in  1720;  the  case  of  Mendham  iu 
1804,  of  Somerville  in  1813;  of  .Horn  in  1813* 
and  of  Bell  and  Douglas  in  1817.  There  are 
these  six  cases  at  different  periods  in  the 
practice  of  this  Coort,  in  whi<:h  a  second 
indictment  has  been  served  before  the  first  was 
disposed  of.  It  has  been  suggested,  that 
the  Court  proceeded  incautiously  in  allow- 
ing the  second  trial  to  proceed  before  the  first 
indictment  was  disposed  of.  I  shall  speak  to 
that  point  afterwards.  At  present  I  am  con- 
sidering whether  the  second  indictment  was 
regularly  served ;  and  the  cases  now  referred 
to  are  invincible  authorities  to  show  that  a  se- 
cond indictment  may  be  served  while  a  first  is 
undisposed  of.  If  this  were  a  nullity  and  in- 
competent, is  it  possible  to  suppose  that  the 
poutt  would  haVe  allowed  the  trial  on  the  se- 
cond indictment  to  proceed?  The  cases  now 
menfioned  leave  my  mind  without  a  shadow  of 
doubt,  that  a  second  indjctmetit  for  the  same 
crime  may  be  seHed  while  a  former  one  is  not 
disposed' of  and  hsl^  been  pleaded  to. 

There  was  an  attempt  made  to  raise  an  ar- 
gument against  this  proposition,  on  the  circum- 
stance that  the  diet  cannot  be  deserted  without 
tbe  leave  of  thti  C6un  i  and  it  was  said  the 


3001 


cfiiwd  wnff  Jervsed,  he  m»  qiiil  of  ^e  .^» 


second  indictmeiit  oqght  jDOt  to  .b9  xenredy 
pending  the  first,  l)ecuse  the  indudd  are  p,yen 
to  enable  the  panel  to  prepai;e  l^s  defences^ 
and  be  cannot  prepai;e  himself  when  bj^  ijp  un- 
ceriidn  which  of  two  charges  be  is  .to  meet. 
This,  howeTer,  is  merely  an  equitable  plea 
against  going  to  trial  on  the  pai^icular  day,  and 
is  just  one  of  those  pleas  wbusb  must  be  left  to 
the  discretion  of  the  Cour^  A  panel  comes 
forward,  au<)  states  that  be  fs  harassed  by  the 
depending  of  two  indictments,  and  theriefgre  he 
moTes  the  Court  that  the  trial  should  be  de- 
layed. This  do^  i^ot  prore  tliat  the  service  of 
the  second  indictment  was  l^guUr^  and  a 
midlity ;  but  it  may  be  a  good  jea^on  for  grants 
ing  delay. 

Here,  tbeo,  I  bottom  my  opipioo.  My  fun- 
damental proposition  js,  that  a  secopd  indict- 
ment may  be  served  labile  the  first  is  not  dis- 
posed of,  apd  has  been  pleaded  to. 

The  second  link  in  the  argument  is,  that  if 
the  service  of  the  indictment  vas  r^gult^r,  then 
the  mthKut  of  fifteen  days  must  run  from  the 
date  of  thf^  service.  The  i^ucU  cannot  ran 
from  the  abandonment  or  desertiou  of  the  first 
libel.  There  is  no  period  known  to  me  from 
which  the  iwbuia  can  run  but  from  th^  period 
of  service. 

The  second  indictment,  then,  was^  regularly 
aerved.  and  the  Mudarun  fibm  that  data. 

In  the  next  proposition  a)l  are  a^r^ ed,  yiz. 
Oat  no  person  can  be  made  to  answer  upon 
more  than  one  indictn^ent  ipr  the  s^e  o0enc^. 
Tbe  question  then  comes  to  turn  upop  this 
single  pointy  Whether  ii  is  i^ecessan^  in  ooint 
of  form  for  (he  Cour^  to  desj^rt  the  diet  ot  the 
first  indictment?  or  whether  it  ^all  be  held 
as  virtually  abandoned  hy  tb^  mere  service  of 
a  second  indictment  ?  This  is  th,e  only  ques- 
tion before  the  Courtly  Whether  iippu  a  p^nel 
coming  here  uTith  twp  indictn^ents,  both  regu- 
larly served ,  is  it  necessary,  in  point  of  fprm^  to 
desert  the  first  by  an  interlocutor  of  Court ;  or 
whether  is  it  aljready  virtually  ajbandone^  ^y 
the  sctr^ice  qf  thp  secvn^  •  V»Q  i^hole  qiieir 
tkm  ^ines  to.tl^«  and  th^  opinbi^  t  givi^  up^ 
it,  after  looKii)g  to  the  precedeutSi  im  that  it  la 
more  regular,  to  desert  formally  when,  the  pond 
dwresii» 

I  am  aware  that  the  doctrine  of  virtual 
ab^n^QQxpout  ha^  be^  acted  upon  in  mai^y 
cs^.'  But  In  none  of  these  cases  was  it  exr 
plipUy  brought;  nndej^  the  notice  of  the  court, 
except  in  the  o^se  of  SomfrvjUey  apd  in  that 
c^  qp  objection  to  it  wa9  taken  by'  the  panet 
It  ibest  tberefqre,  appear  to  met  that  when  it 
is,  serio^s^y  p^ecf«4  %  a  prisoneiv  aaia  the; 
pr^ipt^i^js,  ^t  a  ^t  indictment  is  hanging^ 
over  tusbi^iiDl,  if»  should  desire  a  mimit^,  rrom 
tlMprV^Vtb^  p^^siug  fioii^th^  first  indiptm^t, 
aaJTilhavi^  p(^^9jajqce  a(gii)€f lo^itpr  deserting, 

Ajt.t^f  same  tippteU  iff  l4«W tbs^  ^  Mpel 
cm^  nojl^  svfij^r  any  ivjurj;,  from  the  vfrfm^ 
aban^oi^^'e^;  l>eca.use,tbp  proseciitor,by  exe* 
cttting  a  second,  means  to  abandon  Uie  first. 
Tbe  panel,  too,  knew,  that  the  moment  a  se- 


Knowinff  thi^,  he  was.ftee  ipofi^  a^  Pdrplapi^ 
arising  ttom  «  double  -plfwi*  TttAvetoiw  4m 
is  a  great  deal  of  ^q^y  m  i^e  dflct^li^  tkii 
the  first  indicUnent'nuls]^  jiirs,  by  the  serving 
of  asecond  for iha  saaie  £iioi/9»  ^44 1 iwtA 
not  be  for  altering  this  piFtatios  ^ban  4|it. 
pan/el  makes  no  plyection.  ^i  when  the  -paiMA 
comes  and  states  tha^  tl^ere  is  a  fint  indleu 
ment  hanging  over  him,  and  dMias  i^  ^lOiM 
be  given  up.  ti)e  Court  should  deela^e  k  f|a«> 
serted,  and  taen  the  pigiel  should  go  t*  ttfM 
on  the  seeopd  indictment.  The  rospik  isi  tfipl 
the  trial  proceeds  upon  the  veiy  day  to  whWi 
the  wducta  ran.  On  Moodajr  last  me  hfA  W9tf 
thin|  to  do  in  this  case  but  to  declpjw  thai  ^ 
first  indictm^t  was  at  an  end ;  aad  iho  aacvo^* 
being  regular,  and  the  imfueU  bavnig  nm,  im 
miglu  have  proceeded  to  the  trial,  wr  wgh* 
have  given  a  delay  if  asked  for,  and  igpon  oaait. 
shewn  for  the  indulgencs. 

Lord  BestoJt.-r-The  judges  who  Iw^wm^ 
before  me  have  anticipated  the  gvounds  or  ai|r 
opinion.    I  am  not  ashamed  to  C9ilflM  4lil  I 
have  altered  mj  opiaion..  There  aaa  |v^  qtaa^ 
tions  to  be  decid»d.    One  iM,  wh^lhiF  utt  «!•> 
entitled  to  take  into  consideration  Iha  lacosid 
indictment  till  the  first  is  express](y  abiMloQra4» 
And  the  second  is  whether  the  samea  of  tte. 
second  is  to  be  ooasideced  a  serviea.  at  mM^  aft. 
the  first  vfaa  not  expressly  abaadooed.    I  ott»f 
fes^  ihat  on  tbe  last  day.  I  was  of  opinio*  ilM 
both  thfese  points  should  be  decided  iq  fiavoo^. 
of  the  paneV— that  the  authority  of  A^CowMt 
^aa  necessai^ — and  that  the  fonnar  aernM^ 
befon^  authority  was  obiatned  to  th»  ab^iwhwr 
ing  the  first  indictment  w^  uot  a  mod  OM. 
But,  uppn  considering  thesulMect  furthefv  I 
think  I  was  wrong,  in  p^  m  tAl|t  opiuPB^  l 
think  the  prosecutos  h^  np  right  to  ppsp-  fiMpik 
his  libel,  to  the  affect  U  making  m  4oiind«r«  a. 
n^yr  one,  without  the  authoritjy  of  tiia  Copat 
Aft^r  a  firijt  iqdktmei^  ha^  baan  pltadiidi  tp^ 
tha  authf^nty  of  t)i%  Couj^  4uHi)d  htthtA  fo^it8L 
abandonm^tf 

Th^.  more!  ifipo^^t  qu^atioi^    MMaiae^ 
whetherthq.  ^arnce  o^  thf.  a^Mpd*.  diwwgv 
the  pendancy  of  the  firat»  is  a  nnUUy  on  n 
good  serace.    I  aia  quite  cUari.  ifom  the. 
precedepu;  wbioh  nm  bean  s|at^  h(jp  mjp- 
brethrep,   thai   th^  pr^^  ser^aa  ia  %  g^odi 
service.    The  papers.  cppuMl  ha(va^  adaaitted^ 
th%t  il  the  pan^l  had  iHMl^pi^adady  this  saffi— »., 
wasa^goodsemcew    Now,.  I  cimh)o(  aaawbai^' 
differaoce  can  tie  mi^  bjf  hif-  ptDiHNlMiiiP' 
the  w^s  '*  Ndt  Guilty.''    If  litisqoalsatMtiAiii 
were  to  gq  ip^<^  accouj^  itwpal^  b^.tbft  jnai* 
pgp^Uing  4lf  the.  jury  wfaafh^WMa  to.cqnstllPllP: 
lU"  Before,  the  jury.  is.  swons  aA4>  altar  ikm 
pai\^  has  plea4o4  not,  guitty,  aU.objaotiPMi 
are  op^nt^  him,  i^it  niuei^y.pi?UmPtX7.obi. 
jectiops.  tQcitati99»&p«:  h^-mai^  state  Qhjao*. 
tiom,  to  thf  releiran^,  of  the  libel*    0«  tb«> 
other  hand,  the  pros^jcntor  is,  npti  precloded: 
from  getting  the  diet  deserted  fro^looo^ePHitht- 
pqre,  any  moir^thamiC  D04)lfadu«h«A>lriM' 


971T      ^  GEORGE  lU. 

place.  The  legal  induda  mu^it  ruo  /rom  the 
aervice  of  the  second  iDdictment.  But  the 
Omrt  will  never  refuse  any  equitable  delay 
which  may  be  asked  by  the  panel. 

LordJvrtieeClerk, — I  concur  in  opinion  with  all 
of  your  lordships,  that  when  objections  are  taken 
imd  answered  in  the  anxious  manner  adopted 
in  the  present  case,  with  regard  to  a  matter  of 
form  and  practice  in  our  procedure,  we  ought 
to  take  every  means  of  information,  and  decide 
with  deliberation ;  and  so  far  from  regretting 
the  time  which  has  been  spent  in  this  discus- 
sion, I  have  to  express  my  satisfaction,  that 
on  the  former  occasion  we  adopted  the  course 
which  was  followed  of  ordering  a  search  into 
the  practice  of  the  Court.  But,  now  that  we 
have  the  result  of  that  search  before  us,  we 
sire  called  upon  to  say,  whether  the  public 
prosecutor,  having,  during  the  dependence  of 
an  indictment  which  has  been  pleaded  to,  and 
upon   the    releyancy.  of  which  Informations 

.  w«re  ordered,  executed  a  new  indictment,  is 
entitled  to  proceed  upon  it  against  the  panel. 
I  concur  with  my  learned  brother  on  my  right 
hand,  that  this  is  the  fundamental  and  preli- 
minary question,  and  that'  upon  it  it  is  neces- 
sary to  form  our   opinions  m  deciding  this 

'  case.  But  after  the  very  clear  and  luminous 
statement  from  the  learned  judge  to  whom  I 
allude,  I  should  be  guilty  of  undue  encroach- 
ment upon  your  lordships*  time  if  I  were  to 
enter  into  a  detail  of  the  grounds  of  my  opi- 
nion as  to  that  preliminary  objection.  I  shall 
only  say  in  one  word,  therefore,  that  upon  a 
careful  consideration  of  tlie  argument  upon  the 

finciple  and  train  of  practice  now  before  us, 
have  formed  a  clear,  and  will  venture  to  say, 
ui  unalterable  opinion,  that  there  is  nothing 
in  the  law  or  practice  of  this  Court  to  prevent 
.  a  public  prosecutor  from  serving  a  second  in- 
dictment during  the  dependence  of  a  prior 
one ;  and  that  when  the  legal  period  of  inducia 
granted  by  custom  to  a  panel  has  expired,  the 
prosecutor  may  proceed  upon  that  indictment. 
As  to  what  he  is  to  do  upon  the  second,  that 
is  a  different  question.  But  as  to  Uie  power 
of  serving  a  second  indictment  in  such  circum- 
stances, I  do  not  entertain  a  shadow  of  doubt. 
It  seems  completely  conceded  by  the  learned 
counsel  for  the  prisoner,  that  such  has  been 
the  practice,  and  a  practice  to  which  no  objec- 
tion can  be  stated,  where  a  panel  has  not 
pleaded  to  an  indictment.  It  appears,  how- 
ever to  me,  that  the  moment  that  concession 
is  granted,  there  is  nothing  to  hinder  a  second 
indictment  being  served  in  all  cases.  For  we 
are  brought  to  very  narrow  ground  indeed,  if 
the  whole  objection  be,  that  the  first  indict- 
ment has  been  read  and  pleaded  to ;  as,  after 
the  most  careful  attention  to  the  distinction 
t^en,  I  can  find  no  authority  whatever  for  it 
in  law.  I  am  of  the  opinion  already  delivered 
to  your'  lordships;  that  there  is  no  foundation 
for  assimilating  what  is  called  litiscontestation 
in  this  case,  to  what  occurs  in  civil  cases. 
That  point',  as  far  as  it  could  apply,  was  ar- 


Trial  of  WilHam  Edgar 


[272 


gued,  and  in  reality  decided  against  the  panel,, 
in  the  case  of  Archibald.  Your  lordships  see, 
from  the  report  in  Maclaurin,  that  the  Court 
had  every  thing  before  them  that  could  be 
urged  as  to  litiscontestation  precluding  the  de- 
sertion of  diet,  and  the  service  of  another  in- 
dictment ;  but  the  decision  there  went  in  fact 
on  the  ground  that  there  was  no  litiscontesta- 
tion in  the  sense  in  which  it  occurs  in  civil 
cases ;  and,  at  all  events,  that  it  could  only 
take  place  where  an  indictment  has  been  re- 
mitted to  the  knowledge  of  an  assize.  If,  there- 
fore, the  public  prosecutor  may  raise  a  second 
indictment,  and  proceed  upon  it  at  the  end  of 
the  mducMf  it  removes  the  only  difficulty 
which  occurs  in  this  case,  and  the  only  solid ' 
argument  stated  in  support  of  the  objection. 
For  I  am  clear  that  no  prejudice  could  arise 
to  the  panel  by  the  procedure  objected  to. 

There  is  one  view  of  this  subject  to  which  I 
beg  your  lordships'  attention.  Suppose  the 
iniicis  of  a  new  indictment  raised  in  this  case 
had  run  to  the  20th  of  May,  the  diet  of  the 
former  having  been  continued  till  the  19th,  it 
is  perfectly  clear,  that  if  there  had  been  no 
meeting  of  Court  on  the  latter  day,  the  instance 
on  the  former  indictment  would  have  been  ex- 
tinguished, and  no  proceeding  could  have  taken 
place  upon  it,  ana  nothing  would  have  been 
required  to  be  entered  upon  your  lordships^ 
record.  On  the  20th  of  May,  however,  his 
majesty's  advocate  would  be  entitled  to  move 
the  Court  to  take  up  the  indictment,  the  in- 
ducig  of  which  had  run,  and  the  diet  must  of 
course  have  been  called.  Now,  could  it  have 
been  said  there  was  any  thing  of  the  na» 
ture  of  litiscontestation,  or  that  the  panel  had 
a  jitt  gtuesUum  which  could  have  required  the 
interference  of  your  lordships  ?  There  is  no 
authority  fbr  requiring  it  to  be  shown  that  the 
instance  has  been  extinguished,  and  therefore 
to  that  extent  the  public  prosecutor  must  be 
held  to  have  abandoned  his  charge  without 
the  necessit)^  of  applying  to  your  lordships. 
Your  lordships  neither  have  nor  would  have 
given  the  slightest  impediment  to  that  pro- 
ceeding, but  must  have  taken  up  the  second 
indictment,  and  have  held  that  with  regard  to 
the  former  indictment  there  was  an  end  of  the 
case. 

Bat  it  was  said,  where  the  diets  happen  to 
fall  on  the  same  day  the  case  is  altered,  and 
your  lordships  are  called  upon  to  adopt  a  pro- 
ceeding which  the  panel  says  may  be  favour- 
able to  him.  If  any  ground  were  to  be  made 
out  for  supposing  that  a  panel  could  be  re« 
p^arded  as  standing  in  the  situation  Charteris 
IS  said  to  have  been  placed  ya^  then  your  lord- 
ships by  your  authority  would  afford  a  remedy 
for  any  such  hardship.  If  you  saw  the  public 
prosecutor  (which  I  cannot  suppose  possible) 
attemptinj^  to.  harass  a  .  panel  by  raising 
against  him  a  number  of  indictments  in  sue* 
cession,  and  leaving  him  doubtful  upon  which 
he  was  to  be  tried, — or  take  the  supposition  of 
several  new  ones  being  raised  after  nis  plead- 
ing to  the  first,  you  would  exe'rcise  that  power 


2731 


Jin  AditMUXermg  untaK/kl  Oatht, 


A.  D.  J8t7. 


1274 


irith  ^hich  you  are  entriisted  for  Che  good  of 
the  coantry,  and  afford  immediatci  relief.  But 
ify  on  the  other  hand,  yoor  lordships  hold,  as  I 
doy  that  after  service  of  a  second  indictment, 
both  being  regular,  the  {mblic  prosecator  has 
thereby  declared,  that  it  is  upon  the  second,  and 
that  alone,  he  means  to  proceed,  and  is  not 
entitled  afterwards  to  turn  round  and  say  he 
"Will  go  back  to  the  first,  there  is  not  only  no 
iojoiy  which  can  arise  to.  the  accused,  but  he 
has  a  greater  advantage  than  he  oonld  have 
vpon  the  rule  of  law  he  now  contends  for,  of 
both  indictments  being  held  to  subsist,  and 
tiMft  your  lordships  should  interfere  to  hare  the 
•desertion  of  the  nrst  recorded. 

The  case  of  Charteris,  I  think,  has  not  been 
looked  to  with  so  narrow  an  eye  as  is  proper. 
It  appears  from  Mr.  Hume,  that  Charteris  liad 
lour  indictments  served  upon  him,  and  that  he 
put  in  a  printed  petition  stating  the  hardship 
of  hSs  case,  before  he  was  brought  into  Court 
for  trial,  praying  for  the  authority  of  the  Court 
to  »ll  upon  the  lord  advocate  to  declare 
what  was  the  course  he  meant  to  follow,  and 
upon  which  indictment  he  meant  to  allege  the 
coilt  of  the  prisoner.  The  answer  was  made 
by  the  public  prosecutor  as  to  the  one  upon 
which  he  meant  to  rest,  and  it  was  after  that 
tbat  the  trial  proceeded,*  and  the  Court  de- 
clared the  others  abandoned.  The  diet  of 
jBone  of  them  appeals  to  have  arrived.  But  if 
any  such  proceeding  as  this  was  to  be  attempt- 
edy  your  lordships  would  reauire  no  statute,  no 
recourse  to  books,  but  only  the  dictates  of 
your  own  consciences  to  know  what  you  should 
do,  as  I  have  not  a  shadow  of  doubt  in  my 
mind,  that  a  public  prosecutor  is  not  entitled 
to  vacillate  between  his  different  charges, 
but  tbat  the  service  of  a  second  must  preclude 
him  from  going  back  to  his  first. 

With  regard  to  the  practice,  I  am  bound  to 
say  with  your  lordshipis,  that  when  it  is  looked 
narrowly  into,  it  does  not  appear  to  me  to  rest 
upon  so  clear  and  indisputable  a  basis  as  that 
it  would  be  right  for  your  lordships  to  adopt 
it  at  once  as  the  rule  of  the  Court.    It  was  a 
fair  observation,  that  in  some  cases  a  panel 
might  wish  to  wave  this  or  oiher  objections ; 
and  in  the  case  of  Somerville  I  see  an  obvious 
ground  upon  which  he  wished  to  go  to  trial ; 
as  the  second*  indictment  being  cleared  of  the 
objection  stated  to  the  first,  he  had.  no  object 
to  ask  for  fifteen  days  more.    He  had  no  pal* 
pable  or  tangible  interest  in  vieyi^,  his  witnesses 
being  present,  and  he  might  have  suffered  pre- 
judice if  delay  had  taken  place.    Mr.  Clerk 
said  he  would  have  moved  for  delay  on  ac- 
count of  the  absence  of  four  witnesses  at  the 
first  trial,  but  they  were  present  at  the  last. 
He  mowedf  however,  for  what  wis  a  siv>jftan- 
tiat  interest;  namely,  the  expenses  of  the  first 
indictment,  but  did  not  notice  the  prcjprietjp 
of  doing  away  with  it  on  the  record  i    and 
there  was  an  opinion  c^ven,  that  the  question 
of  expenses  should  be  delayed  till  the  issue  of 
.the  second  trial.    I  am  clear,  therefore,  there 
'was  no  interest  in  that  case  to  insist  upon  the 

VOL.  XXXIII. 


objection,  which  would  have  merely  led  to  a 
fortnight's  delay.  This  same  consideration 
may  apply  to  other  cases,  and  it  is  better  to 
follow  the  straight  forward  course,  without 
eu tangling  ourselves  with  former  doubtful  cases 
not  precisely  in  point. 

Having  formed  a  clear  opinion^  that  there  is 
no  principle,  authority,  or  dictum,  to  induce 
us  to  think  that  tlie  inducus  had  not  run .  from 
the  period  of  service,  merely  from  the  circum- 
stance of  the  two  diets  having  occurred  on  the 
same  day ;  I  am  for  following  that  course  as 
to  which  we  have  so  clear  an  example  in  the 
conduct  of  a  lawyer  of  tlie  first  eminence,  I 
mean  Mr.  Duncan  Forbes,  who  expressly  con- 
sented that  the  diet  should  be  deserted  with- 
out prejudice  to  his  right  to  insist  on  the  new 
indictment  which  he  had  raised.  - 

Although  I  have  a  clear  opinion  that  the 
(nducUs  here  run  from  the  date  of  service,  in 
this  and  in  every  other  case,  if  a  person  accus- 
ed should  state  to  the  Court  reasonable  grounds 
for  delay,  I  would  attend  to  them.  I  am  now 
only  giving  my  opinion  upon  the  law. 

The  Court  then  paoMouvcEo  the  fol- 
lowing INTERLOCUTOa  : — 

**  The  Lord  Justice  Clerk  and  Lords- 
Commissioners  of  Justicary  having  resum* 
ed  consideration  of  the  objection  stated  in 
bar  of  trial  at  last  sederunt,  with  the  an- 
swer thereto,  minutes  of  search  as  to  the 
practice  in  similar  cases  given  in  in 
obedience  to  the  order  of  Court,  and 
heard  parties  procurators  further:  Find 
that  the  service  of  the  second  indictment 
during  the  currency  of  the  first  indictment 
was  competent ;  but  in  respect  that  his 
majesty's  advocate  has  judicially  declared 
that  he  has  abandoned  the  Hrst  indictment, 
desert  the  diet  of  that  indictment  without 
prejudice  to  the  Prosecutor  insisting 
against  the  panel  on  the  second  indict- 
ment as  accords :  Find  that  the  service  of 
the  second  indictment  upon  the  panel  on 
the  third  day  of  May  current,  being  fifteen 
free  days  before  the  day  of  compearance, 
gave  him  the  benefit  of  the .  legal  inducia 
and  •  therefore  repel  the  objection  on  that 
plea,  and  ordain  the  panel  to  plead  to  the 
second  indictment." 

(Signed)    **D.  Boyle,!  P.  D.'» 

Lard  Justice  Clerk. — William  £dgar,  are  yea 
guilty  or  not  guilty  ? 

William  Edgar, — Not  guilty. 

Mr.  C2^.— I  hope  you  will  permit  me  to 
say,  that  ^o  much  of  our  time  and  attention 
having  beei/  already  occupied,  it  would  be 
extremely  hard  upon  us  to  proceed  now  to 
argue  the  relevancy,  upon  which  we  have  a 
great  ,many  consid[erations  to  offer.  I  need 
not  suggest  a  particular  time  for  your  lordships, 
I  do  iiot  think  it  would  be  proper  to .  attempt 
any  encroachment  upon  your  lordships.  I  think 
you  cannot  go  on  with  the  trial  before  Monday 
next. 

T 


57  GEORGE  UI. 


C751 

*<The  Lord  Jiiitice  Qerk  and  Lords 

Commissioners  of  Justiciary  contmufs 
the  diet  against  William  £affar>  panel* 
till  Monday  next  at  ten  o*clodk  forenoon 
in  this  place,  and  ordain  paities,  witnesses, 
and  assizers,  and  all  cgncemed^  then  to 
attend>  each  under  the  pains  of  law,  and 


frMffAndrmM^Onl^ 


(876 


the  panel  in  the  vi^  tiig^  te  be  tul^ 
from  the  ba^  l)%c|(>  tp  the  C9>4e  of  **  *' 
hurgh." 


[See  tbf  lifgfX  €99^] 


700.  Proceedings  in  the  High  Court  of  Justici^y  »t  Edinburgh, 
on  two  successive  Indictments,  raised  by  hi3  Mso^ty'a 
Advocate,  against  Andrew  M*Kinley,  for  administer- 
ing unlawful  Oaths,  June  9nd — July  19th :  57  Geo.  IIL 
A.D.  1817.* 


COURT  OF  JUSTICIARY. 
JuHE  2y  1817. 

Rt  Hon.  DaM  Boyle,  Lord  Justice  Cleric. 
Lord  Hermand, 
Lord  GUUa. 
Lord  Pi(m%. 
Lord  RuUm, 

Omnfeljarikfi  Crtmm. 

Rt  Hon.  Alexander  Maamockk  of  Meadow- 
banky  His  Majesty*s  Advoeate  f  afterwards  a 
lord  of  Session  and  Justiciaiyy  with  the  title 
of  Lord  MeadowVank.J 

James  Wedderhum^  Esq.  Solicitor-General. 

If .  flome  DnawNonrf,  Esq.  Advooate-Depute. 

Comtelfor  the  Pwnd. 

John  Clerk,  Esq. 
Geo.  Cnautotm^  Esq. 
Tho,  T^kNRKm,  Esq. 
Frandt  Jefrev,  Esq. 
J.  P.  Grants  Esq. 
J.  A,  Murray^  Esq. 
Jomef  Momrieff',  Esq. 
Hemy  CoMum^  Esq. 

Lurd  A4voaUe. — Before  your  lordsbips  call 
this  diet,  I  have  to  state  to  the  Court,  that,  upon 
the  90th  of  March  last,  the  panel  was  served 
with  an  indictment  to  stand  trial  upon  the  5th 
9i  April.  To  that  indictment  he  was  never 
caUea  upon  to  plead,  and  a  new  libel  was 
afterwaras  raised  against  him,  the  diet  of  which 
weas  continued  on  different  oc^^ions. 

The  first  of  these  indictments  I  have  aban- 
doned ;  and  though,  according  to  my  own  un- 
derstanding of  the  import  of  the  precedents 
xrhich  have  been  laid  before  the  Court  in  the 
case  of  Edgar,  f  there  is  no  occasion  ibr  enter- 
ing this  on  therecord/yeti^have  no  objec- 
tions to  this  being  done,  if  it  be  desired. 


i«M«* 


*  See  the  preceding  case. 
t.See  the  preceding  casb. 


Lord  JutHce  Clerh^Y<mr  lordships  wi)l  just 
make  a  simiUr  order  here  to  that  m^e  in  t|e 
case  of  Edgair. 

The  (bUowtng  entry  was  thai  naade 
npon  the  record : — 

**  The  Lord  Justioe  Clerfc  and  Loidi 
Commissioners  of  Jnstieiary,  in  respect  of 
ndiat  is  above  represented,  desert  the  diet 
of  the  first  ittdictment  against  the  said 
Andrew  M^Kinky,  reserving  to  his  M»> 
jest's  Advocate  to  insist  upon  the  saooad 
indictment,  as  accords." 

loftf  Juitice  Cferfc.^Andrew  M^Klnlejr, 
attend  to  the  indictment  against  you  wluch  » 
now  to  be  read. 

''Andrew  M'Kinley,  present  prisoner 
in  the  Castle  of  Edinbnrgh,  yon  are 
indicted  and  accused,  at  the  instance  of 
Alexander  Maconochie  of  Meadowbank  his 
imesty*s  advocate,  for  his  miyesty's  in- 
.  terest :  That  albeit,  by  an  act  passed  in 
the  flfty-eecond  year  of  his  present  ma- 
jesty's reign,  intituled,  'An  act  to  render 
more  effectual  an  act  passed  in  the 
thirty-seventh  year  of  his  present  majesty, 
for  preventing  the  administering  or  takiiy 
unlawful  oaths,'  it  is  inter  oIm  enacted, 
''That  every  person  who  shall,  in  any  man- 
ner or  form  whatsoever,  administer,  or 
GSEUse  to  be  administered,  or  be  aiding  or 
assisting  at  the  administering  of  an  oath 
or  engagement,  purporting  or  intoiding 
to  bind  the  person  taking  the  saqie  to 
commit  any  treason  or  murder,  or  any 
felony  punishable  by  law  with  deatl^ 
shall,  on  conviction  thereof  by  due  course 
of  law,  be  adjudged  guilty  of  felony,  and 
suffer  death  as  a  felon,  withoot  benefit  of 
clergy.  And  further,  by  section  fonrth 
of  the  said  act,  it  is  enacted,  'Tha)i  persona 
aiding  and  assisting  at  the  administering  of 
any  such  oath  or  engagement,  as  aiforesaid, 
or  persons  causing  any  such  oath  or  evir 
gagement  to  be  admitilstered,  though  not 

S resent  at  the  adminiitering  UiereoC  MfjL 
e  deemed  principal  offmdto,  and  shall 


«7TJ 


fat  Admhuimkg  mUantfii  Oathi. 


A.  D.  1817. 


[aro 


be  tited  Itttbch;  ijo^, on oonviiSfioB  there- 
of hj  due  ctmrM  of  bw,  sMt  be  adjudged 
gailfJrtfffetony.aAd  sball  suffer  death  as 
nrioos^  wii^otii  btfoefit  of  deifr ;  altlioagb 
Ui#  penond  or  person  who  actually  admi- 
nitteted  snch  oath  or  engagement,  if  any 
sueh  there  shall  be,  shall  not  have  been 
triftd  Of  convicted."     And  further,  by 
AUkm  afatth  of  the  said  act,  it  is  enacted, 
''That    any    engagement  or    obligation 
^atsoever,  in  the  nature  of  an  oath, 
prnpordng  or  intending  to  bind  the  per- 
aoD   tsA(iog   the  same    to  commit   any 
Unnaon  or  murder,  or  any  fblony  punish- 
able by  Unr  with  death,  shall  be  ^med 
an  oath  wilhia  the  intent  and  meaning  of 
thin  acc^   in  wbaterev  fdrm  or  manner 
the  name  shall  be  administered  or  taken^ 
and  whether  tie  same  shall  be  actually 
administered    by    any  person  or  per- 
sons to  any  other  person  or  persons,  or 
tsften  by  any  other  person  or  persons, 
witbovt   any  adniiuistratlon  thereof  hj 
any  other  person  or  penkms:"    Yti  trite  tt 
y/wd  rf  veriijfg  that  yon  the  said  Andrew 
mUalay  are  guilty  of  the  said  crimes, 
^cr  of  one  or  more  of  thtth,  abtof,  ot  art 
Iftd  pari :  In  so  pae  as  l^f  the  said 
Aniitw  M'Kinley  did,  at  sacret  meetings, 
and  on  other  occasions^  at  Gla9g6W,  and 
in  ttw  Tidni^  thereof  in  the  course  of 
Ike  momlis  of  November  and  December, 
1816y  mtid  January  and  Pebtuaiy,  1817, 
wkkedly,  maliciously,  and  traitorously  ad- 
ttiilister,  or  cause  to  be  administers,  or 
did  aid  or  assiit  at  the  administering,  to  a 
peac  mmiber  of  pet«ons>  to  the  amount 
of  anwiftii'  hmfdt«chl^  an  daCh  or  engage- 
or  asi  o^igatibn  in  the  nature  c^  an 
r,  binding,  or  purporting  of  intending 
bJM,  the  persons  taking  the  same  to 
it  ttfeaMofty  whieh  oath,  engagement, 
or  oblikatiofi,  wa#  in  the  flowing  tetms, 
or  to  ue  following  purport : — **  in  awful 
pieseoce  of  God,  I^  A  B^  do  voluntarily 
swear,  that  I  will  persevere  in  my  en- 
deavonring   to  form   a   brotherhood  of 
affection  amongst  Britons  of  every  de- 
•emtiom,  who  are' considered  worthy  of 
oonftdence ;  and  that  I  will  pelsevere  in 
niy  endnavoms  to  obtalft  Ibr  all  tfav  peo^ 
pla  in  GMaft>  Britain  and  Ireland^  not  dis- 
mmliflwl  bjr  citmes  or  ineanvty;  tbede6> 
live  franchao^  at  th^  age  of  twenty-one. 
wf dr  frew-  nnd^  •e^fiad  rspiesentalion^  and 
annual  parliaments ;  and  that  I  will  sup- 
port ifan  sane  to  the  utmost  of  my  p6Wer, 
eilfaer  by  moial  or  physical  strength,  as 
^t»  one  BM^r^niret  And  I-  do  unrther 
swear,  that  neither  hopes,  fears^  rewards, 
or  pnniriMDonts^  shall  indnoe  me  to^  in^ 
aMU'  on^  Of '  giw-  evidenoa''  s^gatns^"  anjp 
member  or  neabers,  colleotivdy  or  indi- 
vtiadl^,  §af  any  act  or  eapteision.  done 
m'Wtmf  m  ^er  o«t^  in  this' or  simtiar  so* 
eiaiidis;  ^Buim  dv  punishuiettt  of  deaths 
to  be  iniicted^oviiNrby  anymenberor 


members  of  such  sodeties.    Slo  help  me 
God,  and  keep  me   stedfast:" — ^Wbich 
oath,  or  engagement,  or  obiication,  to  the 
fcv^gning  puroort,  did  bind,  or  did  pnr- 
piprt  or  intend  to  bind,  the  persons  taaing 
the  same  to  commit  treason,  by  effecting, 
by  pb^ical  force,  the  subversion  of  the 
estfliblisbed  government,  laws,  and  consti- 
tution of  this  kingdom,  and  especially  by 
obtaining  annual  partiaments  and  univer- 
sal suffrage  by  unlawful  and  violent  means. 
Aim,  MoaE  PAHTiGULABLT,  (1 .)  at  a  se- 
cret meetins  held  at  the  hoase  of  Hugh 
Dickson,   then  weaver   in  Abercromby 
sti^eet,  or  CaHon  of  Glasgow,  or  elsewhere 
at  Glasgow,  or  in  the  immediate  vicinity 
thereof,  you  the  said  Andrew  M'KJnley 
did,  upon  die  SOth  di^  of  December, 
18t6,  or  upon  one  or  other  cf  die  days  of 
tlAt  month,  or  of  November  immediately 
nreceding,  or   of  January  imuMdiately 
following,  wickedly,  maliciously,  and  trai- 
torously administer,  or  Cadsif  to  ha  admi- 
nistered, or  did  aid  or  assist  at  the  admi- 
nistering an  oalh,  or  engagemenfti  of  ob- 
ligation, in  the  teims  abo^  set  AMi,  or 
to  the  same  purport,  to  Petek*  Oibton. 
John  M^Lanehlane,  John  Cam||ieU,  and 
Hugh  Dickson,  all  present  prisoners  in 
the  Castle  of  Editfbnrgfa,  or  to  one  or 
other  of  them,  and  to   other  persons, 
whoee  names  are  to  the  prosecutor  un- 
known, the  said  oath,  or  eng^^ement,  or 
obligation,  to  the  said  purport,  binding 
the  persons  taking  the  lame  to  commit 
treason,  as  said  is.    Awn,  FuaTRsa,  (2.) 
yon  the  said  Andrew  M^Kinley  did^  Upon 
the  1st  day  of  Januarv,  1817,  or  on 'one 
or  other  or  the  dajrs  of  that  month,  or  of 
November  ov^DccemberinMiediaiely  pre- 
ceding, at  a  seeret  meotingvMd  in  the 
house  of  Williamr  Leggat,  <4umga4ceiper. 
King  street,  Tradestown,  in  the*  vicinity 
of  Glasgow,  or  elsewhere  at  Glasgow,  or 
in  the  vicinity  thereof,  wickedly,'  ma- 
licio^y,  and  traitorously  admimMr^  or 
oanle  to  be  administerea,'  or  did  aid  or 
assist  at  the  administering^  an-  oath  or 
engagement,  or  obligation,  in  the^  tdrms 
above  set  ftnth,  or  to  the  same  purport, 
to  the  said  Peter  Gibeon^  John  M'LaUch- 
lane,  John  Campbell,  and  Hugh  Dick- 
son ;  as  also,  to  James*  M*£wan^  n&m  or 
lately  carding-master  at*  Humphrie's  'Mill, 
Gorbals  of  Glasgow,  and  M'Dowall  Bate, 
or  Peat,  now  or  totely  weaver  ih  Piccadilly 
street,  Anderstoa,  in  the  vicinity  of  Glas- 
gow, who,  conscious  of  their  guHt  inr  the 
premises,  have  al»ooaded  and  fled  from 
justice;  as  also^  to  John  Conneltoh^  or 
Congleton,  now  or  lately  cotton^inner 
in  Calton  of  Gtesgow,  or  to  one  or  other 
of  them,  and  to  other  persons^  whose 
nataes  are  to  the  prosecutor  unknown,  the 
said  oath,  or  engagement,  or  obligation, 
to  the  said  purport,  binding  the  persons 
taking  the  inme  to  commit  tieasoni-as'    ' ' 


a793 


57  GEOROE  III. 


2'rial  qfjijidrew  M^KiviUy 


[28a 


ii.  -  And,  fuathek,  (3.)  you.  the  said 
Andrew  M^Kialey  did,  upon  the  4th  day 
of  January y  1817,  or  on  one  or  other  of 
the  days  of  that  month,  or  of  November 
or  December  immediately  preceding,  at  a 
secret  meeting,  held  in  the  house  of  Neill 
Munn,  innkeeper  and  stabler,  in  Ingram 
street,  Glasgow,  or  elsewhere  at  Glasgow, 
or  in  the  vicinity  thereof,  wickedly,  mali- 
ciously^  and  traitorously  administer,  or 
cause  to  ,be  administered,  or  did  aid  or 
assist  at  the  administering,  an  oath,  or 
engagement,  or  obligation,  in  the  terms 
above  set  forth,  or  to  the  same  purport, 
to  the  said  Peter  Gibson,  John  M'Lauch- 
lane,    John    Campbell,    Hugh   Dickson, 
M*Dowall    Pate,    or    Peat,    and  James 
M'Ewan ;  as  also,  to  James  Hood  and  \ 
John  Keith,  both  present  prisoners  in  the  ' 
Castle  of  Edinburgh,  Andrew  Soraerville,  I 
John  Buchanan,  and  James  Robertson,  I 
all  now  or  lately  prisoners  in  the  tol-  ; 
booth  of  Glasgow,  or  to  one  or  other  of 
them,  and  to  other  persons  whose  names 
are  to  the  prosecutor  unknown,  the  said 
oath,  or  engagement,  or  obligation,  to  the 
said   purport,   bii^ding    the   persons  so 
taking  the  same  to  commit  treason,  as 
said  IS.     And,  fubtheii,  you  the  said 
Andrew  M'Kinley  did,  upon  the  5th  day 
of  February,  1817,  or  on  one  or  other  of 
the  days  of  that  month,  or  of  January  im- 
mediately preceding,  at  a  secret  meeting, 
held  at  the   house  of  John  Robertson, 
innkeeper  apd  stabler  ia  Gallowgate  of 
Glasgow,  or  elsewhere  at  Glasgow,  or  in  '• 
the  immediate  vicinity  thereof,  wickedly,  • 
maliciously,  and  traitorously  administer,  | 
or  cause  to  be  administered,  or  did  aid  , 
or  asnst  at  the  administering,  an  oath,  or  ! 
eagagementy  or  obligation,  in  the  terms